Most people turn to lawyers or law professors to help them understand the Constitution. The problem with this approach lies in the fact that most lawyers and law professors are J.D. impaired.
So where do we turn? How can we figure out what the various clauses and provisions in the Constitution really mean?
The sad fact is the vast majority of lawyers don’t actually know squat about the Constitution. They don’t learn about the Constitution in law school. Instead, they learn “constitutional law.” In other words, they learn what other politically connected lawyers — federal employees staffing federal courts — have said about the Constitution. They learn precedent and they follow it like a sacred text.
But as James Wilson wrote in “Of the Study of Law in the United States, Circa, 1790, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
A lot of people think this means looking at what the drafters of the Constitution said during the Philadelphia Convention. And while we can get some hints about original meaning from those notes, the drafters don’t hold the key. We also need to look at what the supporters of the Constitution said it meant during the ratification debates. That’s where we find its actual meaning – in the original understanding the ratifiers actually agreed to. As Thomas Jefferson wrote:
“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
But how do we determine the meaning in which it was passed? Or as one reader asked, “For those of us not JD-impaired, where should we go to get a sense of what was said during the debates? Weren’t those supposed to be a ‘what happens in Vegas’ sort of environment? I am recalling Hamilton’s leaked affinity for British monarchy that torpedoed him on some future occasions…”
It appears the reader was confusing the state-ratification debates with the Philadelphia Convention. The delegates drafting the Constitution did keep things locked down pretty tight. There was no information available to the public until the delegates emerged with the final draft. We still know very little about the “behind closed door debates” surrounding the drafting of the Constitution. Most of what we do know comes from James Madison’s copious notes.
On the other hand, the state-ratification debates were very public affairs and we can find extensive records about their proceedings.
The Federalist Papers are the best-known source of pro-constitution arguments. Three New York newspapers — the Independent Journal, the New York Packet, and The Daily Advertiser — published the first 77 essays between October 1787 and April 1788. In the spring of 1788, J. & A. McClean published all 77 essays, plus eight others, in a two-volume compilation titled The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787.
The Federalist Papers are well-known primarily because of the prominence of their authors — Alexander Hamilton, James Madison and John Jay. Most people today overstate the importance of the Federalist essays. In fact, they had very little influence outside New York at the time. Nevertheless, we can find valuable insights into the way various provisions of the Constitution were ̶