How do we learn the original meaning of the Constitution?
A lot of people will say, “Just read it.” That’s an essential first step, but it’s not quite as simple as that.
The Constitution is a legal document rooted in 18th-century law. It is filled with legal terminology and based on complex legal principles.
STEP 1: READ THE CONSTITUTION
That’s not to say that reading the Constitution is something only a few experts can do. But it’s important to keep in mind that while the Framers drafted the Constitution to be understood by ordinary people, it was also done during a time when the general public was far more familiar with law and historical texts than a vast majority of people are today.
Reading an 18th-century legal document with a 21st-century understanding of the words can quickly lead you way off the reservation. After all, the meanings of words can and do change over time. James Madison warned what would happen if we took this approach.
“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!”
In other words, in order to understand the Constitution, you need a coherent framework through which to read it.
The only way to understand the original, legal meaning of the Constitution lies in a process known as “originalism.” To read the Constitution through an originalist framework means we seek to determine how the people who ratified it and put it into legal effect understood it at the time. In other words, we adhere to what they said they were agreeing to.
Otherwise, as Madison warned, the meaning becomes a moving target, subject to the changes in language and societal assumptions over time.
Thomas Jefferson summed it up succinctly.
“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.”
James Madison expressed a similar view 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.”
Madison went on to assert that if this isn’t the guide, “there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”
In another letter to Thomas Ritchie, Madison insisted, “The legitimate meaning of the instrument must be derived from the text itself.”
He went on to say “if a key is to be sought elsewhere,” it is to be found “in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”
In a nutshell, to understand the legal meaning of the Constitution and any clause, word, or phrase in it, you have to understand how the people who gave it legal force understood it. And you can determine this by first studying the debates in the state ratifying conventions.
Madison leaned on this idea in his first 1791 speech opposing the bill to charter the First Bank of the United States. Madison argued that “in controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide,” and that “Contemporary and concurrent expositions are reasonable evidence of the meaning of the parties.”
After reading numerous passages from the debates in the Pennsylvania, Virginia, and North Carolina Ratifying Conventions, Madison said, “all this evidence” presented “the sense in which the Const. was understood and adopted.”
As legal scholar Kurt Lash put it, “It is clear that originalism has been with us from the beginning, articulated by the father of the Constitution before the ink was dry.”
In opposing the bank bill, Madison said one must ask two crucial questions to determine whether or not the federal government possesses a given power. The first – is this authorized by the Constitution?
Not “Do I like this policy?”
Not “Do I like the guy proposing the policy?”
And not even “Is this policy a win for liberty?”
THE ESSENTIAL QUESTION
The first question should always be: is this constitutional? Or to put it another way, can we find a specific delegated power justifying a given federal action?
James Madison put it this way:
“Whenever, therefore a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided.”
That leads to an even more fundamental question: what were the various clauses and phrases meant to authorize in the first place?
As noted by Madison above, “In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.”
STEP 2: DICTIONARIES
But how do you determine the meaning of legal words and phrases in the Constitution as the ratifiers understood them?
First, we can determine the meaning of specific words using dictionaries from the drafting and ratifying period. Some popular examples include Samuel Johnson’s Dictionary of the English Language, Thomas Sheridan’s 1789 A Complete Dictionary of the English Language, and Nathan Bailey’s 1783 Universal English Dictionary.
Some people also use Noah Webster’s 1828 dictionary, but this was published decades after ratification, and could not have had any influence on the understanding of the ratifiers in 1787-1791.
Next, in order to fully understand these founding-era words in the context of the Constitution, there are four other general sources we can turn to.
STEP 3: RATIFICATION DEBATES
The first source for context is the historical record surrounding the ratification of the Constitution.
This starts with the debates during the state ratifying conventions. From their discussions, we can understand the viewpoints of both opponents and supporters of the Constitution. Elliot’s Debates provides a comprehensive overview, featuring five volumes recording the proceedings of the debates in several states.
Expanding this even further, the Documentary History of the Ratification of the Constitution provides another comprehensive source. The 34-volume set (and growing) transcribes more than 70,000 documents, including official materials, such as records of town and county meetings, executive records, legislative proceedings, convention journals, and debates, petitions, recommended amendments, forms of ratification, and financial records; personal papers, such as letters, memoirs, diaries, and poetry; diplomatic correspondence; and printed primary documents from newspapers, broadsides, and pamphlets.
The best-known are the Federalist Papers and the Anti-Federalist Papers.
The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay to support the Constitution during the New York Ratifying Convention. Because of their well-known authors, they are far more influential today than they were during the ratification process.
In fact, the Federalist was primarily written to influence the people in the New York ratifying convention due to strong opposition in that state. The papers didn’t have wide publication outside of New York during the ratification debates and thus had little broader influence.
There are many other Federalist works that had much more influence than the Federalist Papers.
Perhaps the most influential argument for ratification came through James Wilson’s State House Yard Speech. The speech was reprinted in 34 newspapers in 12 states, and it served as a “playbook” for the Constitution’s defenders throughout the ratification debates.
John Dickinson’s Fabius letters, named after the famous Roman general whose guerilla tactics kept Hannibal at bay, were also extremely influential. The Fabius essays were printed and distributed nationwide.
Oliver Ellsworth wrote a number of essays in a collection known as Letters of a Landholder, and Roger Sherman penned a series known as Letters of a Countryman.
Reading the Anti-Federalist objections also provides valuable insight into the meaning of the Constitution. They also give us much-needed context when reading Federalist positions – as many of those speeches, essays, and other works were written in response to objections raised by the Anti-Federalists. Many of the arguments advanced by supporters of the Constitution only make sense when placed in context with these objections.
Perhaps the most prominent Anti-Federalist was Patrick Henry with his many speeches during the Virginia Ratifying Convention. George Mason joined Henry in raising important questions about the extent of federal power. For instance, Mason provides a great deal of insight into the importance of the militia and the founding era’s disdain for standing armies.
Other important and influential Antifederalist writers include, but are not limited to, Brutus, Cato, the Federal Farmer, and Agrippa.
STEP 4: LEGAL SOURCES
Another source that provides important background to understand the Constitution is legal sources from the period including legal dictionaries, treatises, and other documents. Giles Jacob’s New Law Dictionary is an excellent source in the category.
In the realm of legal theory, Blackstone, and Coke were widely influential in the shaping of American law. Vattel, along with Grotius, Pufendorf, Burlamaqui, and Wolff, were considered the leading experts on matters of war peace, and foreign policy. These thinkers served as the Founders’ pantheon of international law.
The 17th-century judge and parliamentarian Edward Coke (pronounced “Cook”) wrote “Institutes of the Lawes of England.” It served as a primary teaching guide for law students. Many influential lawyers in the founding generation including Edmund Pendleton of Virginia and John Dickinson of Delaware and Pennsylvania, learned their law from Coke.
William Blackstone’s “Commentaries on the Laws of England” was another important work influencing the development of the U.S. legal system. Blackstone served as a judge in Great Britain and was the first professor to teach the common law at Oxford University. His Commentaries were based on his university lectures. Published between 1766 to 1769, Blackstone’s work was more up-to-date than Coke’s and easier to understand. After 1772 and throughout much of the 19th century, Blackstone’s treatise was the backbone of legal education in America.
STEP 5: THE FOUNDERS’ EDUCATIONAL CANON
The next source of context is the Founders’ educational canon. These were the authors and classical works that informed the political and legal philosophies of the founding generation, including Greco-Roman classics, Montesquieu, John Locke, and Algernon Sidney.
For instance, Thomas Jefferson once called Sidney’s “Discourses Concerning Government,” “the best elementary book of the principles of government, as founded in natural right, which has ever been published in any language.”
Many classical figures influenced the thinking of the founders. For instance, Tacitus’s “Annals” and “Histories” informed both supporters and opponents of ratification. The lesson from the “Annals” and “Histories” they considered most important – a lesson amply confirmed by the imperial biographies of Gaius Suetonius – was that power corrupts. Even when corruption isn’t total, power creates incentives for abuse and dishonesty.
Montesquieu was perhaps the most influential political philosopher in the founding era. Participants in the constitutional debates quoted and relied on Montesquieu more than any other political commentator. He was frequently cited by both Federalists and Anti-Federalists, especially in defense of the separation of powers into three branches.
Montesquieu also shaped their view of federalism, arguing that republican government broke down if it extended over a large territory. His remedy was a “confederate republic” – a union of states that granted some power to a central authority but retained most authority at the state level.
STEP 6: EXPERIENCE AND HISTORY
Finally, the founders’ experience and their understanding of history give a great deal of insight into the meaning of the Constitution. Their experience under British rule in particular motivated their view of government.
For instance, in the Sixth of his Letters from a Farmer in Pennsylvania, John Dickinson argued that letting the government take on even a little bit of new power would eventually lead to bigger and bigger usurpations in the future.
“All artful rulers, who strive to extend their power beyond its just limits, endeavor to give to their attempts as much semblance of legality as possible. Those who succeed them may venture to go a little further; for each new encroachment will be strengthened by a former. ‘That which is now supported by examples, growing old, will become an example itself,’ and thus support fresh usurpations.
This is exactly how it played out with the British.
Dickinson warned how it would play out with a history lesson in the ninth essay.
“Spain, Dickinson said, was once free. Its governance was similar to that of the colonies. No money could be raised without the people’s’ consent. But an ongoing war against the Moores required funding. The king received a grant of money to fund the fight, but he was concerned it might not be a sufficient amount to pay for the war effort long-term. So, the king asked that “he might be allowed, for that emergency only, to raise more money without assembling the Cortes.” The Cortes was the Spanish representative body — similar to the Parliament.”
Dickinson noted that the proposal was “violently opposed by the best and wisest men in the assembly.” But the majority approved the measure. And thus began a slide down a slippery slope. As Dickinson described it “this single concession was a PRECEDENT for other concessions of the like kind, until at last the crown obtained a general power of raising money, in cases of necessity.”
The legislature gave an inch and the king took a mile.
Dickinson wrote, “From that period the Cortes ceased to be useful—the people ceased to be free.”
He closed the letter with these Latin words of instruction:
Venienti occurrite morbo.
Oppose a disease at its beginning.
Along those same lines, John Adams made a similar argument also using a Latin phrase: “Obsta principiis,” which means withstand beginnings, or resist the first approaches or encroachments. Colloquially, we would say, “nip it in the bud,” which is exactly the phraseology Adams used.
“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”
The colonists’ experience with the British stuck with the founding generation and significantly influenced their framing of government, particularly their desire to strictly limit centralized power.
Similarly, living with British standing armies helped form the founding generation’s views. The writings of John Trenchard and Thomas Gordon expressed the American view of founding, warning about the dangers. In their views, permanent military forces empowered government and threatened liberty.
In 1751, Trenchard penned “A Short History of Standing Armies in England,” chronicling the maintenance of the professional military in times of peace and the troubles caused by its existence. This historical account provided much of the context in which the Founding Fathers viewed standing armies.
Trenchard also co-wrote the Cato Letters with Thomas Gordon, who penned “A Discourse on Standing Armies.” Together, their works had a strong influence in shaping the views of America’s Founders. We see that influence carried over into the militia clauses of the Constitution and later the Second Amendment.
A SECOND QUESTION
If there is no specific delegated power authorizing a federal action, Madison said you need to answer a second question: is the action necessary and proper?
“If it [the power] be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it.”
This refers to the Necessary and Proper Clause found in Article I, Section 8 of the Constitution.
The clause simply states that Congress has the power, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
But what does this mean?
Thomas Jefferson and James Madison took a narrow view of the clause, arguing that necessary means indispensable. During the debate over the Bank Bill, Jefferson put it this way.
“The Constitution allows only the means which are ‘necessary’ … that is to say, to those means without which the grant of power would be nugatory.”
Madison essentially agreed, arguing, “Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end and incident to the nature of the specified powers.”
In effect, Madison and Jefferson both argued the clause was merely declaratory and, in essence, superfluous.
On the other hand, Alexander Hamilton argued for an expansive definition of Necessary and Proper, claiming that necessary included anything “convenient.”
Edmond Randolph thought the clause offered more latitude than Jefferson and Madison claimed, but not nearly as much as Hamilton did. In his view, the exercise of “incidental” powers was broader than merely those which are absolutely necessary. He argued that “to be necessary is to be incidental, or in other words may be denominated the natural means of executing a power.”
During the Virginia Ratifying Convention, Randolph called his view the “intermediate explanation” of the clause between Madison and Jefferson’s view and others who argued the clause gave the federal government “sweeping” powers.
Even using the limited Madison/Jefferson view of the Necessary and Proper Clause, it can still be difficult to determine if a power is truly necessary or proper. Using all of the resources available to answer the first question can help make that determination.
CONCLUSION
Understanding the Constitution isn’t as simple as “reading the words.” It requires some background knowledge. However, it is imperative for people to learn the basics and take advantage of all the available resources.
After all, it is up to the people to keep the government within its constitutional limits. As James Iredell put it, “The only resource against usurpation is the inherent right of the people to prevent its exercise.”
The people will have a far less difficult time responding to usurpation if they can first identify it.
As Abigail Adams put it in a 1780 letter to her son, John Quincy, “Learning is not attained by chance, it must be sought for with ardor and attended to with diligence.”
