The Constitution was created in a special legal environment. The Founders were raised with a particular educational canon. They also had certain common experiences. During the 19th century, important details about those matters began to slip away. Constitutional law forgot them.
In other words, information crucial to understanding 18th century words was lost during the 19thcentury. I call this phenomenon “The Great Forgetting.”
I stress that the mistakes from the Great Forgetting were mostly innocent, well-intentioned errors by people who lacked the interpretive tools needed to recreate the Constitution’s true meaning. The Great Forgetting mistakes were not comparable to the willful distortions of the Constitution rampant in the 20th and 21st centuries.
Still, the Great Forgetting’s consequences for constitutional thought were enormous. Popular misconceptions about the Constitution arose that in some instances remain influential. People think some ideas were the Founders’, when in fact those ideas were invented after all or most of the Founders had gone.
The leaders who wrote the Constitution and led the fight for ratification were born and raised in the British Empire. Most were lawyers trained in English jurisprudence and legal vocabulary. When Alexander Hamilton and James Wilson argued a case or wrote a document (like the Constitution), they used mostly English court decisions and British books. Even leading non-lawyers like James Madison and George Washington were well grounded in English legal concepts.
When the Founders assigned constitutional meaning they also were influenced by the history of Europe. They were particularly immersed in the heritage of ancient Greece and Rome, which formed the backbone of their education. They further considered the history of the British America, which they and their forefathers had lived through.
In the 19th century, however, Americans quite naturally decided that they wanted to be Americans. They did not want to be merely children of Britannia. Noah Webster wrote a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote histories from a strongly American point of view.
As the individual Founders died out, their personal memories were lost. They left many documents recording their memories, but often those documents were inaccessible. For example, James Madison’s notes of the Constitutional Convention were not published until after his death in 1836. Even when critical materials were available at places like Harvard and Columbia, they might be unavailable in Missouri, Ohio, or at the Supreme Court in Washington, D.C.
Consider just a few popular misconceptions and how the Great Forgetting made them possible:
* In the early 19th century, the idea arose that the Commerce Clause granted to Congress exclusive (rather than merely concurrent with the states) jurisdiction over interstate commerce. As I pointed out in Part II(C) of an article on the Commerce Clause as it pertains to Indian tribes, Madison’s convention notes disprove that idea. But those notes were not yet published. The footprints of this misconception can be traced today in the Supreme Court’s Dormant Commerce Clause and Indian Commerce Clause cases.
* Political actors in the 19th century promoted the claim that an Article V “convention for proposing amendments” is an”constitutional convention” that cannot be limited. No Founder would have believed that, because within the lifetime of Benjamin Franklin, there had been nearly 20 inter-colonial or interstate conventions confined to limited subjects. The claim of unlimitability survived because the Founders’ vast convention experience had been forgotten.
* Throughout the 19th century, many argued that Congress had no power to issue paper money, or at least no power to make paper legal tender. The records of the Constitutional Convention are ambiguous on the subject,but the ratification records and other contemporaneous documents are clear: Congress has both powers. However, in the 19th century the full ratification records were no longer readily available. As a result, the Supreme Court struggled for years over a question that should have been answered easily.
* During the 1840s, lawyers for political disputants spun the idea that in guaranteeing each state a “republican form of government,” the Constitution forbids states from using methods of direct democracy, such as initiatives and/or referenda. The argument is absurd to anyone familiar with 18th century word usage, or with the Founders’ immersion in the history of ancient Greece and Rome. But such things had been largely forgotten.
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* In 1823, a Supreme Court justice writing a trial-level opinion without his fellow justices added some unnecessary musings about what he thought the Privileges and Immunities Clause of Article IV might mean. His language was not well considered: Not only were there internal inconsistencies, but the language showed unfamiliarity with the background of the Clause. Yet this passage became the basis for continuing misconceptions among commentators and judges who had never learned what “privilege” or “immunity” had meant in 18th century law.
We are fortunate today in that the Internet enables us to reconstruct 18th century meanings. But technology is not enough. We must beware of the results of the Great Forgetting. And we must equip ourselves with the history and language skills necessary to recreate the message the Founders intended to give us.
Thank you for pointing this out Rob, but lest no forget this constitution was built on the ideology of A Republic form or way of life because what they witnessed first hand was opposite. But best yet were those secretly Declaring themselves away from such Rule and Thomas Jefferson was very certain we needed a good foundation or original basis for our choices in the direction of a Republic thus the Declaration of Independence was born and enacted freeing us from the barbaric Rule of King George the 3rd allowing them to even consider a Constitution. But even then there were those who were heavily sided on the old habits, but luckily there were good lesson holders who knew better and assured us this Constitution before it was altered to the degree of our own self destruction. We did not get here by accident we are here because there have always been opposition to this way of life in A Republic by the early definitions of such a concept.
The truth of the matter if the Declaration of Independence was used as the basis of choice in the Constitutional amendments we would not be here today. Because it is the least used we find ourselves in the exact ignorance of history we were warned of. Our own unwillingness as life to research ourselves through history our own ignorance. There is much offered in this history and we have more access to it than we ever have in history. Our weakness is simply our own by not understanding these concepts as usable in daily life because by doing so is our strength. In fact the original Draft of the Declaration of Independence was the most well thought out document I have ever located. Its own alteration was living proof our opposition was among us. This left no question they were there during the construction of our Constitution. Today we have constant reminders of our opposition to A Republic way of life and many would do well to get this.
Remember? O heck no, go out and remind ourselves of such a rich history of poor causes, bad ways of life and bad sustainable practices that did not add up in the support of life itself, the most important part of all. Because if this is not the reason then no reason exists and history is this revealing.
Well reminded.
Make paper legal tender? That’s somewhat unclear, and no I haven’t read your coinage clause article yet, I will. Nonetheless, “dollar” is used in the USC, so we know that the “dollar” already exists, and is not some arbitrary name for money, but a known, measured amount, as in the Spanish silver dollar prominently used at the time. We can also see that the states are prohibited from making anything but silver and gold as tender for payment of debts, how then could the federal government override this by issuing fiat money? Now could paper receipts for the money be issued? Sure.
As for a limited or unlimited CC, really what’s to prevent the States from an unlimited CC, amending is amending, and it’s their choice if enough desire it. I think sometimes you let your conservatism interpret the USC, rather than your scholarship. Saw that particularly in your article concerning the use of the Commerce Clause to prohibit certain products.
While I have no comment regarding most of the material presented, I simply will observe what Mr. Natelson ignores. He asserts an Article V Convention can be limited (presumably by the states and/or Congress). He has never explained and refuses to address in any of his writings the simple fact that Article V allows both Congress and convention to propose “amendments” rather than “amendment.” Obviously, if authorized to propose “amendments” this means the body in question cannot be limited to a specific subject or even subjects but has the power and authority to address as many issues as it chooses. Equally important and just as ignored by Mr. Natelson is the fact the states have the authority to reject this proposals, however many, in the ratification process. If by limited, he is referring to this power, then he is correct. If by limited, he is referring to predetermination of subject before a convention, then he is incorrect. As the law of the land was different before the Constitution was enacted, his references to events that took place then have no bearing on our present law of the land anymore than enactments of English law at that time period would have on our present-day Constitution.
Good title. But my wonderment is, was it “forgotten” or just interpreted wrongly.
I agree with most of what the article says and the comments regarding this article, however a few misconceptions in this article and the comments should be pointed out.
While Congress is authorized , under Article 1 Section 8, “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures”, they are not authorized to commit fraud in the way of issuing fiat paper money. Although Congress can issue paper money, it must be nothing more than a receipt for an actual precious metal or some other valuable commodity, even oil, that a holder can exchange for a determined amount, which Congress IS authorized to set. Although before the Revolutionary War the various colonial governments issued what is known as Colonial Script, which was very successful and the crackdown on it by the British government due to influence of the Bank of England was one of the precursors to the War, it was known that it was to be an engine for the facilitation of commerce and was to be issued accordingly. Can you imagine what the spendthrifts in Congress today would do if given the power to issue fiat money? It would be worse than the FED… Although they should be done away with considering they are a privately owned bank that was instituted by a fraudulent scheme by international bankers (if you don’t know the history of “national” banks in America, I suggest you take a crash course) and the law that ushered them in was never properly ratified. What needs to happen is Congress relegates and regulates paper money, issued by the Treasury and backed by something substantial and whose value is set on a semi-regular basis to stave off the kind of inflation we have to deal with now. There should also be a move to repeal the 16th Amendment, which gave the federal government the “right” to steal the fruits of labor without it being duly apportioned before being taxed, and the 17th which took away the States representation in Congress and the reassertion of War Powers by Congress, the Executive branch be damned.
Another issue that should be tackled is jurisprudence having bearing on the decisions of the Supreme Court. I understand that the concept is sound, you do not want laws changing all the time, but they do anyway with a runaway Congress enacting bills without even reading them. When new themes dealing with the original intent are brought forward regarding new or landmark cases that the Supreme Court decides, the Court should be MANDATED to review them and rule accordingly. “Interpretation” is an insidious supposition, all too often it is used to further a political agenda. The original intent should be the ONLY basis for the decisions regarding law…. Then again, I would like to see the “constitutionality” powers taken away from the Supreme Court, which it was never intended for, and returned to the States by way of nullification….