On Constitutional Preservation...

En Garde In The Bunker

Having been called to task recently on a Facebook thread from someone questioning my knowledge of the Constitution, I bring you the following which springs to mind as a result of that “debate” on Constitutional intent. Coincidentally, Rob Natelson in today’s American Thinker addresses the same argument, to which I will segue` into following my own commentary…

There are numerous scholars of the Constitution who believe the Federalist Papers are the arguments of intent; they were/are arguments for ratification and discussion of the meaning of the features of the Constitution, although it may not be ‘intent’ as Natelson discusses it. The intent is the execution of the first principles of the Declaration of Independence carried forward into the body of the Constitution, and into the record of the Constitutional Convention, with Court decisions thrown in to provide:

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,”

That in a nutshell is our Constitution – And when the Constitution is to be amended it should be analyzed against:

“That whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

Though the crux of the matter is “what does the Constitution mean?”, if we follow the admonition of Justice Scalia it means what it means when they wrote it. The understanding of “intent” is a search for the motivation that inspired the men who wrote the Constitution on what it is they actually meant to convey.

When we amend the Constitution, as a minimum, does it reflect A) first principles found in the Declaration of Independence; B) does it strengthen federalism; and C) does it cure a defect in the Constitution? If all three cannot be satisfied the amendment must be rejected.

First Amendment set in stone…

A good place to start where the Constitution is to be construed, is heeding Jefferson’s words, in accordance with:

“The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated, not those who opposed it .. These explanations are preserved in the publications of the time.”

And for the Courts from Chief Justice Marshal:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.

As Rob Natelson informs us, the reporters of the day were not all equal in the task of reporting the cases that held certain principles of our Constitution deriving the “intent” of the framers either at the time of its debate and ratification, nor in subsequent cases at law.

Anyone desiring to delve further into the issue of first principles and amending the Constitution here is an excellent analysis by Virginia M. McInerney: Repeal the Seventeenth Amendment

And for a case study of when the amendment process comes off the rails, even though it appears to meet first principle analysis, there’s this: The 14th Amendment: Born in Despotism Steeped in Tyranny

I’m not so much concerned with the language of “intent” as I am with the ever-progressive left’s twisting, bending, and undermining the very Constitution itself, to which I say “Hands Off!” – The Founders gave you a perfect document, now live with it!

On now, to Rob Natelson and his “Researching the Constitution’s Original Force”…

When lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document — or, more precisely, something they call the “intent” behind the document. The Founding Era phrase was “intent of the makers.” Ideally, the “intent of the makers” is what originalist scholars try to uncover when they interpret the Constitution.

The “intent of the makers” is a technical term referring, in the case of the Constitution, to how the ratifiers (not the framers) understood it — or, if as to a particular clause there is not sufficient evidence of a unified understanding, how informed people would have understood it during the ratification era. Because this is the guide for how Founding Era courts would have interpreted the Constitution, I sometimes call this concept the “original legal force.”

Commentators presenting their views on the Constitution’s original legal force should avoid certain common mistakes. Two obvious ones are (1) not understanding the rules of original legal force and (2) cherry-picking evidence to support predetermined conclusions. Other errors include:

Reading the document as a 21st-century American rather than an 18th-century American;

Using evidence that is not from the relevant time period — sometimes from a period too long before the Constitution’s adoption, but more commonly from a time after the ratification was over; and

Gathering insufficient evidence.

Several years ago, I prepared a nine-page essay to help researchers avoid the last of those mistakes. This essay was called A Bibliography for Researching Original Understanding. It is available here. It provides a list of materials originalists can use.

One last point: when citing 17th and 18th English law cases, it has become the custom recently to cite only the location of the case in English Reports (Full Reprint), a modern case collection. This custom has been encouraged by the widely-used citation guide known as the Harvard Bluebook.

Unfortunately, limiting citation to English Reports is not good practice. English Reports obtained its summaries of cases from the books compiled by individuals known as reporters. The quality of their reports vary greatly. A Founding Era lawyer consulting a case report by William Salkeld, for example, would give much more credit to it than to a case report by Joseph Keble. He also would give more credit to Salkeld’s first two volumes than to his third. Citing only to English Reports tells the reader nothing about the reliability of the material being cited. Also, it gives too much weight to case reports the Founders might have disregarded and too little to those they deemed authoritative.

The definitive guide to the relative merits of the English case reporters was written by an American, John William Wallace, whose book is referenced in my bibliographical essay.