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For decades constitutionalists of all stripes (read: Tea Partiers, Tenthers, etc.) have mourned the demise of our constitutional republic. They feel that despite their often heroic (and unheralded) efforts to fend off the near constant attacks on our founding charter by the enemies of limited government, the vigorous eradication of the first principles of liberty continues unabated.

To a man, these harried patriots undauntedly crusade for a return to the foundational and timeless tenets of republicanism that informed our Founding Fathers; specifically as those tenets are expressed and interpreted in our Constitution.

Recently, however, there has been a bloc of erstwhile patriots that, considering the cause lost, have abandoned the struggle and have declared the campaign to reestablish our republic upon its former footings hopeless.

While wearied friends of liberty may often suffer from a strain of this brand of battle fatigue, there was recently published a remarkable work that offers a renewal of hope and a firm scholarly basis upon which to moor those hopes.

The book is called The Original Constitution: What it Actually Said and Meant, and its author is former law professor Robert G. Natelson. Published by the Tenth Amendment Center, the book is the product of years of diligent and broad study on the part of Natelson. In fact, according to acknowledgements listed in the first few pages of the book, Natelson visited libraries at Oxford University, the Middle Temple in London (the alma mater of several of our Founding Fathers), and the University of Virginia. Natelson patronized these particular institutions in order to benefit from their impressive collections of eighteenth century sources.

Such sources are, Natelson asserts, vital to acquiring a proper comprehension of the minds and motives of the men who framed our remarkable Constitution. Without an appreciation of the raw materials used by the Founders and the quarries from which the foundation stones were cut, it is impossible to rebuild the temple of American freedom.

In this valuable contribution to the library of liberty, Natelson presents this invaluable material in a most engaging manner. Rather than a clause-by-clause constitutional exegesis, Natelson begins “by surveying some history and values shared by the Founding Generation….” The thematic approach employed by Natelson endows the book with an encyclopedic heft. This academic reliability is bolstered by the ample index and a rich bibliography.

While unquestionably accessible by all who wish to drink from the fountain that nourished our Founding Fathers, The Original Constitution merits scholarly consideration, as well. The footnotes are miniature theses and comfort the reader with the knowledge that Natelson is leading them along a path that has been trodden by patriots and philosophers for centuries.

Perhaps the best way to illustrate the impressive scope of this irreplaceable book is to rehearse the five “basic political values and principles that seem to have been fully accepted by Federalists [those who supported the Constitution of 1787] and Anti-federalists [those opposed to the ratification of the Constitution] alike.”

Professor Natelson identifies these five core values and principles as:

1. liberty, in the sense of Lockean natural rights,
2. effective government,
3. republican government,
4. decentralization, and
5. fiduciary government.

Each of these five heads is covered in its turn.

As for the first shared tenet listed above, Natelson hails English philosopher John Locke as one of the primary sources of the natural rights doctrine espoused by our Founding Fathers. He ably makes the case for the preeminence of Locke’s theories of natural rights in the interpretation thereof propounded by the men who wrote and influenced the Declaration of Independence and the Constitution.

While it is undeniable that the whorls and arches of Locke’s fingerprints are found on both of our founding documents, his role has perhaps been exaggerated by generations of historians and political scientists. Although not completely guilty of too abundant attribution of all things constitutional to John Locke, Natelson does fail to credit others whose influence in the area of natural law and the rights associated therewith was arguably greater than that of Locke — Samuel Pufendorf, Jean Jacques Burlamaqui, and Algernon Sidney, to name a few. None of these men is mentioned in Mr. Natelson’s book. (For more information on these “forgotten influences” on the Founders, please see this article.)

Each of the remaining five key concepts is given rather short shrift by the professor. Of particular note, however, is that the final principle receives lengthier treatment than all but that dealing with Lockean liberty.

The concept of “fiduciary government” is described by the author as “one of the most important Founding Era principles.” He goes on to explain that etymologically speaking, “fiduciary” is a legal term of art referring to the “special obligations one assumes when one manages the property and affairs of another.”

Evidence of the significance of this relationship between government and the governed is gathered from the many references in writings of the Founders to government officials as “agents,” “trustees,” “servants,” or “guardians.” This understanding of the right role of government convinced the men and women of the Founding Generation that the power exercised by governments was limited according to the dictates of the demands of trust imposed upon those obliged to govern.

After grounding the reader upon the sure footing of these first principles, the bulk of the book remarks upon the limitations on the powers granted by the Constitution to the three branches of government: legislative (considered by the Founders to be the most powerful), executive, and judicial (described by Alexander Hamilton as the “weakest of the three departments of power”).

From that commendable examination, Natelson goes on to describe the Founders’ intent to restrain the powers of the central authority by specifically enumerating very limited powers, while reserving to the states and to the people the bulk of the sovereignty with which nature had endowed them.

As one would expect from a book published by the Tenth Amendment Center, there is a brief though impressive section of the book devoted to the principles underlying the Ninth and Tenth Amendments and the restrictions on power imposed by those two devices.

The author rightly asserts that Americans, once they had withdrawn from the British Empire via the Declaration of Independence, were in a sort of “state of nature.” In this state the people were in absolute possession of the full panoply of unalienable rights by which they were “endowed by their Creator.” Upon finally and fully dissolving the ties that bound them to the Crown, Americans were free to enact state constitutions wherein they ceded some of those rights to a state government.

Next, upon creating the Constitution of 1787, those sovereign states in turn granted some of their power to the new national government. “Thus, through the medium of the Constitution the American people transferred some rights/powers, such as most authority over foreign commerce, from the state governments to the federal government.”

Summarizing the legislative history of the Ninth and Tenth Amendments, Natelson writes:

The Ninth and Tenth Amendments were both rules of construction without substantive force of their own. The words “rights” and “powers” in the two provisions were essentially interchangeable. The Ninth Amendment reminded the reader that although the Constitution created exceptions to some federal powers, it limited federal powers in other ways, too. The Ninth Amendment implicitly acknowledged tht the federal government had implied, incidental powers, but warned the reader not to construe them too broadly. The Tenth Amendment embodied a similar caution about construing powers too broadly. The Tenth Amendment also reminded the reader that the designatio unius maxim applied to the Constitution’s enumerated powers, and expressly excluded the theory that the federal government enjoyed unenumerated powers arising from “inherent sovereign authority.”

With unqualified eagerness I recommend this book to all who read this review and consider themselves Constitutionalists. All true Constitutionalists will yearn to enlighten themselves with the wisdom of the ages regarding the metes and bounds of good government. Mr. Natelson’s book is a storehouse bulging with stock of this type.

Professor Natelson concludes his book by frankly stating, “Whether ‘We the People’ want our real Constitution back is ultimately for us to decide.” There is no disputing that. As the maxim enjoins, “Pray as if everything depended on God and work as if everything depended on you.”

If you decide that you do indeed desire the return of the constitutional republic bequeathed to us by our Founding Fathers, then do yourself a kindness and purchase this extraordinary book. Its length is not daunting (271 pages) and should be manageable by all with an interest in its contents. And, if you wish to contribute in a meaningful way to the cause of the restoration of our Constitution, then you must begin by learning whence were derived the ideas, precepts, and propositions upon which that document was established. This book is an important first step toward that goal.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee with his wife, Sarah. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author

The following is the book’s preface, reprinted here with permission from the author. Audio version read by Jeff Riggenbach.

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It is Thursday, December 22, 1791. You live in Philadelphia, currently serving as the temporary capital of the newly-created United States of America. It has been only fifteen years since Independence was declared, and less than three years since the federal government began functioning under the United States Constitution.

For a long time, it had been touch-and-go as to whether the Constitution would be ratified at all. Two states initially refused to agree, and of the remainder five had approved the document only after the Constitution’s supporters and moderate opponents had cut a political deal calling for a Bill of Rights. As soon as the new Congress met, two of the most important states, Virginia and New York, petitioned for a new convention to re-write the Constitution. Only after Congress had approved the Bill of Rights did Virginia and New York abandon their petitions and only then did the last two hold-outs, North Carolina and Rhode Island, join the union. The fourteenth state, Vermont, came in at the beginning of 1791.

Earlier on this day, you learned that the Bill of Rights had finally been ratified on December 15. So now, you reflect, the union is reasonably secure, evening is approaching, and your work day is done—and you are on a Philadelphia street corner with nothing particular to do. The weather is chilly and blustery, but there is a cure for that: A warm punch in a cozy tavern.

You enter the tavern and look around for a seat. The place is nearly full. But there is bench space at a long wooden table at one side of the room. Sitting around the table are men you recognize— eminently respectable men— some of Philadelphia’s leading judges and lawyers. They are deep in debate about an abstruse point of real property law. Not being a lawyer yourself, you do not think of that sort of discussion as the key to a good time. But there are no other seats.

You slip into the empty chair and order your punch while the discussion swirls around your head. Eventually, you decide to turn the conversation elsewhere. You give a little cough.

The lawyers had barely noticed you, but now turn they their heads and break off the debate. “I regret that I feel unqualified to comment on your subject,” you say. “But, gentlemen, you know I am not a lawyer. May I suggest another topic?”

They seem interested. The prior discussion had been wearing thin anyway. “You no doubt have observed,” you continue, “that ten new constitutional amendments were proclaimed last week.”

“Yes,” responds one of your listeners. (You know him as a distinguished judge.) “They should work some change upon the system.”

“That is exactly what I wished to pursue,” you add. “What is that system? And what change does the Bill of Rights effect upon it?”

The lawyers look at each other. One of them—he is particularly known as an expert in wills and fiduciary trusts—smiles. “Well, my good man, that is an expansive inquiry whose response might consume some time. Are you otherwise engaged for the next few hours? ” The others laugh.

But you press your question. It is only seven o’clock, your spouse has gone to Carlyle to visit relatives and you are not “otherwise engaged.” Neither are you particularly eager to leave the warm tavern.

“I am at complete leisure,” you respond. “Please, say on.”

The lawyers glance at each other. “Well, why not?” asks one. “As it happens, we are not engaged either. The courts are closed tomorrow, and our wives are enjoying the comfort of each other’s society. I dare say they have no present need of us!” More laughter.

“I think I can speak for my learned colleagues here,” the trust attorney interjects, “when I tell you that there is no topic on which we would rather discourse that our new Constitution. We have exchanged views on this subject before, and we differ on the small points. But I flatter myself that we are in accord on the great ones.”

You are a bit amused at how easy it is to induce lawyers to talk. You draw deep from the warm punch, and sit back, and listen . . .

What would those lawyers tell you that evening? What would have been their understanding of the scope of the new federal government and its powers? What would they relate of the role of the states or of the people? What, in other words, was the actual legal force of our Constitution as lawyers and intelligent lay persons understood it in 1791?

This book answers those questions. The answers were important in 1791, but they are especially important today, when our federal government seems to have wandered so far from its roots. Those answers are deemed relevant to constitutional interpretation by almost everyone, and many people believe them dispositive. That is, many Americans—lawyers and non-lawyers alike—believe the Constitution’s original understanding should govern us today.

To be sure, some people—including the former law instructor who now serves as President of the United States—believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect. Competent Founding-Era scholars largely agree on what most of the original Constitution’s provisions mean. Much of the disagreement among constitutional writers results from unfamiliarity with the historical record or with eighteenth-century law. We will never be absolutely certain of the complete meaning of every constitutional clause. But we can reconstruct most of the original Constitution’s meaning with clarity and confidence.

The Structure and Approach of this Book

Our lawyer friends in the Philadelphia tavern probably would not explain the Constitution clause-by-clause, since it would be more efficient to approach the subject by general topic. That is the approach in this book. We shall begin by surveying some history and values shared by the Founding Generation—material you would not have had to ask about in 1791, but might not know today. Then the chapters proceed theme by theme. For example, one chapter examines the role of the states in the federal system. Another treats all of Congress’ enumerated (listed) powers, no matter where in the Constitution they appear. Still another discusses the executive branch. Because this book speaks of the Constitution as it stood in late 1791, it generally uses the past tense. This keeps the work internally consistent, and reminds you that the content does not necessarily reflect constitutional law as the courts apply it today.

Footnotes and Bibliography

Most of the conclusions in this book are based on the densely-referenced studies listed in the chapter-by-chapter bibliography. Others are based on new research. In general, I have limited footnotes to four functions: providing cross-references to other parts of the book; providing references to the part of the Constitution then under discussion; citing material not found in the studies listed in the bibliography; and, in a few cases, commenting on modern constitutional issues related to the text.

Framers, Ratifiers, Federalists, Anti-Federalists, and Founders—the Words Defined

This book refers frequently to the views, goals, methods, and comments of the people who wrote, debated, and adopted the Constitution and the Bill of Rights. The Framers were the fifty-five men who drafted the Constitution at the federal convention in Philadelphia, between May 29 and September 17, 1787. The Ratifiers were the 1,648 delegates at the thirteen state ratifying conventions meeting from late 1787 through May 29, 1790.

The Federalists were participants in the public ratification debates who argued for adopting the Constitution. History has labeled (unfairly) their opponents as Anti-Federalists. The Founders comprised all who played significant roles in the constitutional process, whether they were Framers, Ratifiers, Federalists, or Anti-Federalists. Although the Framers and Ratifiers were all male, the Founders were not. Women such as Mercy Otis Warren, an important Anti-Federalist writer (and later a leading historian), helped to shape public opinion about the Constitution.

Also among the Founders were the members of the Confederation Congress (1781-89) and its leading officers, as well as the members of the initial session of the First Federal Congress (1789). That session drafted the Bill of Rights and debated and resolved several constitutional issues while North Carolina and Rhode Island were still weighing whether to join the union, and while Virginia and New York were petitioning for a convention to propose amendments.

Many Founders fit into more than one category. For example, James Madison and Alexander Hamilton were Framers, Ratifiers, leading Federalists. John Jay, who served the Confederation as Secretary for Foreign Affairs, did not attend the constitutional convention, so he was not a Framer. But he did serve as a delegate to the New York State ratifying convention, and he wrote some of the essays in The Federalist (or, as they are commonly called, The Federalist Papers) urging that the Constitution be approved. He was therefore a Ratifier and a Federalist as well as a Founder. Elbridge Gerry of Massachusetts actively participated in the federal convention, but publicly opposed the final result, so he was a Framer and an Anti-Federalist. He was not a Ratifier, but did go on to play a prominent role in the First Federal Congress. Like Gerry, George Mason was a Framer and an Anti-Federalist. He also was a delegate at the Virginia ratifying convention, and therefore a Ratifier.

In this book, the phrase Founding Generation means the entire involved populace—Framers, Ratifiers, Federalists, Anti-Federalists, Founders, and anyone else participating formally or informally in the great national debate over ratification.

Evidence for the Original Constitution

Lawyers, judges, and scholars seeking the Constitution’s original legal effect use certain “standard sources.” These sources include the text of the Constitution itself, the federal convention notes prepared by James Madison and other delegates, debates in the state ratifying conventions, The Federalist, and a few other documents, such as the Articles of Confederation and the early state constitutions.

The standard sources are of great value, but they are not sufficient. For example, the royal commissions and instructions to colonial governors helped shape the Founding-Era understanding of the executive power, but those sources are rarely referenced today. The Federalist exercised an important influence in the ratification debates, but lesser-known writings exercised more.

Another valuable source often overlooked is the law of the Founding-Era. Most of the leading Founders were lawyers and the general public was far more knowledgeable about law than it is today. The Constitution was, of course, a legal document written in a particular legal environment. So you need to know something of the 1787 law to fully understand the meaning of a legal document written in 1787. Sometimes a few pages from Bacon’s Abridgment or Jacob’s New Law-Dictionary can resolve decades of academic dispute.

For these reasons, lawyers, judges, and scholars have been paying more and more attention to evidence outside the standard sources. Herbert Storing’s The Complete Anti-Federalist was published in 1981. It is a collection of the long-neglected arguments against the Constitution. The Wisconsin Historical Society has been issuing its multi-volume Documentary History of the Ratification of the Constitution. The National Historical Publications and Records Commission and George Washington University have sponsored the Documentary History of the First Federal Congress. Dedicated people, such as Texas attorney Jon Roland (www.constitution.org) have posted on the Internet hundreds of documents previously accessible only in top academic libraries. The Gale Company’s Eighteenth Century Online database now makes available much of the Founders’ literary world, enabling you to find dozens, sometimes thousands, of word usages in a few seconds.

In writing this book, I have had the advantage of all those sources.

Rob Natelson is a recently-retired Professor of Law at the University of Montana and a leading constitutional scholar. He is co-author of a forthcoming book on the Necessary and Proper Clause to be published by Cambridge University Press. He is also the author of The Original Constitution: What it Actually Said and Meant, published by the Tenth Amendment Center. Professor Natelson is a Senior Fellow in Constitutional Jurisprudence at the Independence Institute.

Recently, the U.S. Speaker of the House, Nancy Pelosi, responding to a reporter’s question of whether the Constitution gave Congress the authority to enact individual health insurance mandate, kept repeating, “Are you serious?”

Now, let’s give Speaker Pelosi the benefit of the doubt and attribute her impolite reply to simple disbelief. In fact, from her point of view her authority is unchallenged per a September press release, and many others such as Politico’s Erwin Chemerinsky and even the contemporary Supreme Court agree. From her press release, Pelosi states:

“The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.“

The Speaker is certainly correct that federal Congress has certainly legislated on “many aspects of American life.”  In fact, there is a lot more at stake with the Commerce Clause than “just” our health care — the entire authority for economic central planning rests on this single clause. I strongly disagree with Pelosi that the Constitution allows Congress broad power in this respect. First, the exact language from my job description in Powers of Congress, Article I, Section 8, Clause 3:

“The Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Pelosi believes that she has the power to “regulate Commerce… among the several States” and I suggest that in blunt language she instead literally means to “control the economy… of the States.”  Pelosi and her ilk accomplish this by confusing the modern meanings with the legal meaning and contemporary context of the founders.

Regulation, in today’s dictionaries, means “a governmental order having the force of law.” However, this is not the historical definition.  The founders believed “regulate” to literally mean ‘to make more regular’ or, per Black’s Law Dictionary at the time, “a rule or order prescribed for management or government; a regulating principle; a precept.” In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties. This is most clearly seen in Article 2 of the Kentucky Resolutions of 1798 written by Thomas Jefferson.

Next, although the Federalist Papers are not legal documents, they do serve as public demonstrations of the founders’ intentions as they were part of a series of essays published to explain the Constitution to the public before its’ ratification. James Madison in Federalist #42 wrote:

“The defect[s] of power in the existing Confederacy to regulate the commerce between its several members… [has] been clearly pointed out by experience… It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity… it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade… The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls.”

A modern example of “unregulated” Commerce by the founder’s meaning would be manufacturing companies in the interior of India, which has 28 states. As goods move by rail or truck from interior states to a seaport in a coastal state, each state assesses its own tariff at its border which rightly leads to “animosities” and a “less convenient channel” for foreign trade. But what did the founders mean by ‘Commerce’?

Within the last century, several American lawyers have claimed the founder’s definition of commerce was “all gainful activities” or “all human interactions.” This has been taken by the leviathan federal Government as authority to control not just health care, but the minimum wage, manufacturing, agriculture, the mining, oil and lumber industries, possession of firearms, land use, criminal law such as federal drug laws, and environmental protection, in most cases usurping states’ rights per the 10th Amendment and in some cases even inventing jurisdictions.

Fortunately, Dr. Robert Natelson wrote a well-documented paper “The Legal Meaning of ‘Commerce’ in the Commerce Clause” in 1996. After examining thousands of instances of ‘Commerce’ used in contemporary legal documents, Natelson concluded that commerce simply and exclusively meant “exchange” or “traffic” and its associated activities, such as navigation, to the founders. In simple English, commerce benefits agriculture or manufacturing, but does not include either agriculture or manufacturing. Furthermore, Natelson notes:

“If we read “Commerce among the several States” to mean “all gainful economic activity among the several States,” then the clauses by which Congress is empowered to regulate commerce with “foreign Nations” and the “Indian Tribes” become either largely redundant or nonsensical. Even more seriously, if the Commerce Clause grants Congress power to regulate all economic activities, then some of Congress’ other economic powers become surplus.”

So, if the Commerce Clause gave Congress economic central planning authority, many of the powers listed in the Constitutionwould be redundant. The powers of Congress over postal roads and offices, dockyards, intellectual property, and more would be repetitive if the power was already enumerated in the Commerce Clause. During the Federalist Papers debate, one would have expected the Commerce Clause to have been hotly debated by the anti-Federalists if it had been truly intended to give unlimited power over all gainful economic activities to the federal government. Federalist #42 would not have been able to dodge such a huge stripping of power from the States. What do we hear from the historical record? Silence, which indicates that this was a non-issue.

Natelson goes into a lot more detail than I have, and it is much easier to shred the other constitutional references given to support government infringement into health care.  Please read my Health Care plank which also links to the Constitution of the USSR (which DOES authorize government involvement in health care) and this great discussion on the “General Welfare” clause.

The “Necessary and Proper” clause is briefly dismissed by the referenced Natelson paper, but more strongly in his other papers. In short, Pelosi and the rest of Congress simply MUST have a constitutional amendment passed before legislating on health care. Their actions in Congress are highly illegal, and is one of many unconstitutional and illegal acts committed against the American people by Congress.  Since no help can be expected from the appointed-for-life Supreme Court, the last defense, really the only defense, is that of We the People ourselves.

So in formal reply to Speaker Pelosi, even the notion of federal government authority over the health care of the American people is completely absurd. My reply is: “Madame Speaker, are YOU serious?”

Jake Towne, “The Champion of the Constitution,” is running for U.S. Congress in Pennsylvania’s 15th District in the 2010 election as a citizen unaffiliated with any political parties.  Jake is a columnist at NolanChart, and also contributes to LibertyMaven and CampaignForLiberty.

The interview runs just under 18 minutes, and you can load the audio by clicking the play button below:
[audio:http://www.tenthamendmentcenter.com/wp-content/uploads/2009/04/dori-monson-rob-natelson-041709.mp3]

Here’s a few recent articles that Professor Natelson has contributed to the Tenth Amendment Center:

• The Enumerated Powers of States
• The Constitution: A Question of Interpretation

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.