Understanding the Constitution requires knowing some English constitutional and legal history. Both the Constitution and Bill of Rights are loaded with words and phrases inherited from England.
Indeed, the English inherence has been enormously important in shaping the American culture and legal system generally. When educators underplay the English background in service to the โdiversityโ agenda, they leave their students clueless as to the meaning and significance of the Constitution, and susceptible to โwokeโ propaganda.
England is, of course, the largest of the four components in the United Kingdom, which also includes Scotland, Wales, and Northern Ireland. All of the 13 colonies that became the United States (as well as the 14th state, Vermont) adopted English political and legal institutions. Even today, most states have constitutional provisions or statutes declaring theย common lawย of England to be the basic law of their courts.
Colonial Americans, like the English, treated Magna Carta, the Petition of Right, and the English Bill of Rights as foundational documents. Colonial legislatures were structured by charters based on English law. Most of the colonial governors were appointed by the Crown. American courts applied English procedures, respected English case precedents, and sometimes consulted acts of Parliament. American law students learned their legal doctrine from Edward Cokeโs โInstitutes of the Lawes [sic] of Englandโ or William Blackstoneโs โCommentaries on the Laws of England.โ
Nearly all the leading participants in the constitutional debates of 1787โ1790 had worked within the Anglo-American political and legal system. Some had spent considerable time at โhome,โ as the colonials sometimes called England. John Dickinson, for example, studied law at Londonโs Middle Temple (one of theย Inns of Court) and frequently observed Parliament in action. Ben Franklin lived for years in London, where he represented colonial interests. Franklin was also a postmaster general in the unified British imperial Post Office.
Other leading Founders, while not spending time in England, studied under those who had. One such was James Wilson, a Scottish immigrant, who clerked in Dickinsonโs law office.
The common belief that the Constitution was written in ordinary language is a half-truth. Most of the Constitutionโs language was ordinaryย for the founding generation. But that generation was far more knowledgeable about law and political institutions than most Americans are now. In addition, some of the Constitutionโs language was not ordinary even in 1787. Because the Constitution is a legal document (the โsupreme Law of the Landโ) and because itโs also an outline of government, the framers inserted words and phrases with specialized legal and political meanings.
The framers were not trying to trick anyone by using legal and political terms. They were simply using language efficiently. During the ratification debates, the framers and other spokesmen for the Constitution carefully explained these words and phrases to the general public (pdf).
Here are three ways Anglo-American law affected the Constitutionโs meaning:
First: Eighteenth century lawyers, like attorneys everywhere, divided the law into categories. Their books show that commercial law, for example, was a separate category from patent law or bankruptcy law (pdf). Thatโs why the Constitution itemizes each of these categories separately (Article I, Section 8).
Thus, when the Constitution gave Congress power to โregulate Commerce โฆ among the several States,โ it bestowed authority to regulate activities that 18th century lawyers considered โCommerce.โ It didย notย grant Congress power to govern the entire economy, as the modern Supreme Court seems to think. Instead, as leading Founders explained, the regulation of most economic activities was left to the states (pdf).
Second: Some provisions are in the Constitution specifically to react to particular rules of Anglo-American law. One of these is the Ninth Amendment.
The Ninth Amendment is a response to an Anglo-American guideline for interpreting documents. The guideline was (and is) often expressed in the Latin sentence,ย Designatio unius est exclusio alteriusโthe designation of one item is the exclusion of another. It means that if you have a list of items, then you can presume those not on the list are excluded.
The Ninth Amendment was adopted so that this guideline would not apply to limits on government power specifically mentioned in the Constitution. It tells us that the federal government is limited in ways not specifically listed.
Third: Many of the Constitutionโs words and phrases areย terms of artย taken from centuries of English law and political practice. A โterm of artโ is a word or phrase with a specialized definition different from the ordinary meaning.
By way of illustration, in common speech, the word โnecessaryโ usually means โabsolutely required.โ But in the Necessary and Proper Clause (Article I, Section 8, Clause 18) it has the specialized meaning of โincidental.โ Incidental, in turn, is also a word with a particular legal definition.
Letโs finish by listing some additional words and phrases in the original Constitution and in the Bill of Rights with specialized political or legal meanings imported from England. Nearly all these words and phrases are explained in my book, โThe Original Constitution: What It Actually Said and Meant:โ
Admiralty โฆ advice and consent โฆ appellate jurisdiction โฆ authority of the United States โฆ attainder of treason โฆ bill of attainder โฆ capitation โฆ cases โฆ commissions โฆ confederation โฆ consuls โฆ convention โฆ corruption of blood โฆ direct Taxes โฆ establishment of religion โฆ ex post facto Law โฆ forfeiture โฆ general welfare โฆ giving them aid and comfort โฆ high crimes and [high] misdemeanors โฆ impeachment โฆ imposts โฆ indictment โฆ law of nations โฆ legislative powers โฆ letters of marque and reprisal โฆ necessary and proper โฆ needful โฆ natural born โฆ oath or affirmation โฆ original jurisdiction โฆ privileges and immunities โฆ pro tempore โฆ public ministers โฆ recess of the Senate โฆ regulation of commerce or revenue โฆ reprieves โฆ trial [] by jury โฆ regulate the value thereof [coinage] โฆ religious test โฆ republican form of government โฆ speaker โฆ tax โฆ the freedom of speech โฆ the freedom [] of the press โฆ tonnage โฆ use of/public use โฆ vacancies happen/vacancies that may happen โฆ warrants โฆ well-regulated militia โฆ writ of habeas corpus.
This essay wasย first publishedย inย The Epoch Timesย on October 9, 2021.
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