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 “sold” to the general public from the essays.
But a wealth of information exists beyond the Federalist Papers.
Written records of testimony from most of the ratifying conventions survive to this day. Many of these records are available online. Reading the debates provides you with the most complete picture of the issues surrounding ratification. You find both the anti-federalist objections to ratification, as well as how supporters of the Constitution addressed those objections. Through analyzing these exchanges, we can parse out the original meaning as understood by those who voted to approve the document. The arguments offered by those who supported ratification provide the basis upon which the Constitution was accepted. These were the arguments that changed the minds of fence-sitters. These were the promises accepted by all of the ratifiers who voted yes.
You can also find information about the debates in newspapers of the time and from records of speeches such as James Wilson’s famous State House Speech.
Wilson’s speech was particularly important because it asserted that there were strict limits on the general government. Wilson argued that the new government would only be able to exercise delegated powers.
When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating foederal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved.”
This idea was repeated over and over again during the ratification debates and provides one example of how ratification era texts illuminate the original understanding of the Constitution.
Dictionaries of the day can also help us to understand the meaning of various words and phrases in the document. The meaning of words change over time, so it’s important to understand what words meant when they were written. For instance, commerce had a very specific meaning in the 18th century and did not imply “all economic activity” as it does today. As James Madison wrote in a letter to Henry Lee:
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”
The important thing to remember is that it was the people of the states, through their elected delegates to the ratifying conventions, who gave the Constitution force. The ratifiers made their decisions to approve the Constitution based on the arguments and explanations supporters of the document presented during the ratification process.
It is in these pro-Constitution arguments that we find the original meaning. Even if the ratifiers viewed something totally different than what we might infer from the drafting debates at the Philadelphia Convention – the ratifiers’ views always hold.
You don’t have to read court cases or depend on lawyers to understand the Constitution. In fact, you shouldn’t. You can learn what the ratifiers thought for yourself.