Constitutional Myths

by Ray Raphael

  The Constitution was a contract fashioned by “We the People.” It could not take effect without the assent of the citizens, represented by their delegates to state ratifying conventions, who were parties to the contract. The delegates who gave their approval did so with a particular understanding of its contents, so it is appropriate to ask what a “reasonable ratifier” thought he was voting for, and even more to the point, from a legal point of view, what he was voting for. What did the contract actually say, in the language of those times? That was the “original meaning” of their agreement.

  These variations of originalism—explicating the Constitution by calling upon the framers, the ratifiers, or the original meaning of the text—are part and parcel of our culture today. We all ascribe to originalism on some level. Even those who disavow these methods of interpretation often make use of them, marshaling quotations from the framers and their contemporaries to buttress their arguments.

  But …

  “Original intent” presupposes a unitary body with a clear, common intent, but what was the “original intent” of a compromise engineered to satisfy competing interests or philosophies? Even the intention of a specific framer remains elusive. We might know that he favored this provision or that, but we cannot glean his full understanding of any issue from a speech he made to garner votes. Persuasion and explication are not the same.3

  Further, when we think of the Constitution as a contract, the issue is not what those who wrote it wanted it to say or what interested parties hoped it might say, but what it did say. To understand a contract, we should look at how the words were understood at the particular time it was signed. So it is with our Constitution. We want to know what the words and phrases signified when it was written and ratified.

  Yet how, precisely, is that to be determined? We do have an abundance of primary sources to consult, but more often than not, these sources are affected by partisan leanings. When we search for clear meanings in political pamphlets, newspaper essays, and the records of the contentious state ratifying conventions, we find words and phrases twisted in ways geared to promote or denigrate the Constitution.4

  All these issues point to an overarching quandary. We want to know what the Constitution really says, as if that document were a simple list of rules passed down from above on a tablet, the work of a single mastermind. Many Americans imagine it was and treat it that way. This is the phantom Constitution they wave in the air, exclaiming, “Just read this and you will see!” Yet answers to such interpretative questions are rarely as absolute as we might hope. The meaning of the Constitution was disputed from the moment Congress submitted it to the states on September 28, 1787. It’s a sobering truth.5

  Constitutional disputes have three causes. First, not all provisions within the Constitution are designed to cover narrowly defined sets of circumstances, as routine statutes do. Many, like the length of terms for officeholders, are cut and dried; but others, like grants of powers to Congress or the president, are not. Precisely because these clauses are phrased in broad, sweeping terms, their applications will be subject to interpretation. The framers claimed only to be setting outlines, and by including words like “necessary and proper” in the grants of power to Congress (see chapter 4), they ensured that the exact borders would never be determined in a manner acceptable to all.

  Second, circumstances change with time, and meanings change as well. In 1787, when nations went to war, they “declared war,” yet for two-thirds of a century we have ignored this convention, as have other nations. Wars are still waged, yet the Constitution, stuck forever in its old ways, does not comment on prolonged, undeclared military conflicts. How we deal with changes in the waging of war, and the accompanying breakdown of traditional nomenclature, presents a puzzle we have not yet solved.

  Altered circumstances and meanings challenge originalism in any form. The founders lived in their world, we live in ours, and the two are very different. The founders were very smart, but soothsayers they were not. The future was a closed book to them, as it is to us. Lacking knowledge of today’s world, and with no appropriate experience to guide them, they are not the best authorities on regulating the Internet or securing airports from terrorists, matters wholly unknown to their experience. We can look to them for general principles, but principles must be applied, and the devil is in the details. More than we wish to admit, we are on our own.

  Finally, the Constitution did not provide a methodology for resolving interpretative differences, nor did it even state clearly who should resolve them. In the absence of such instruction, originalism can never be a panacea. Since the framers, as a body, said nothing on the one matter upon which all else depends, we cannot rely exclusively on their guidance.

  That said, originalism as an attitude is here to stay. The pervasive sense that the Constitution is fixed, not malleable, fosters continuity. For over two centuries, with one major exception, the nation has changed leaders without altering governmental structures, and the mystique of the Constitution—a set of allegedly clear ground rules that all must obey—is no small part of that success story. We debate current meanings by debating historical meanings, affirming allegiance to our founding document as we do so. We always have and we always will.

  The Full Story

  The First Federal Congress was not yet three months old when members discovered a hole in the new Constitution. While creating the job description for a secretary of foreign affairs, congressmen understood that the president would make the appointment “by and with the Advice and Consent of the Senate,” as stated in Article II, Section 2, of the Constitution. But who could remove that officer? The president alone, or did he need the advice and consent of the Senate? Since the founding document was silent on that matter, congressmen took sides and went at it tooth and nail. Georgia’s James Jackson argued that if the Senate were to have a say in an official’s appointment, it must of course have a say in his removal. No single individual should be entrusted with such power: “The liberties of my country may be suspended on the decision of this question,” Jackson warned. But Virginia’s Richard Bland Lee, who believed that removal was clearly the province of the president, was even more apocalyptical: “The day on which this question shall be decided will be a memorable day, not only in the history of our own times, but in the history of mankind,” he proclaimed. “On a proper or improper decision, will be involved the future happiness or misery of the people of America.”6

  Interpretative problems continued. The Constitution stipulated that the president also needed the “Advice and Consent” of the Senate in making treaties. The standard for consent was clearly stated—two-thirds of the members present—but what did the framers mean by advice? Should the president consult the Senate before international negotiations? During negotiations? In either case, how was he to approach the Senate? President Washington, while working on an Indian treaty in 1789, spent two disappointing days in the Senate chamber, never to return. To this day, the constitutional role of the Senate in offering advice on treaties remains unclear.7

  Congress was empowered to levy taxes, borrow money, pay debts, regulate commerce, and coin and regulate the value of money—but could it charter a national bank, allegedly in service to its stipulated constitutional powers? In 1791 Hamilton and Madison offered opposing answers (see chapters 4 and 6).

  In 1793 President Washington proclaimed that American citizens were not to offer material support to either Britain or France, then at war with each other. Did he, or did he not, possess the constitutional authority to do so? Again, Hamilton responded one way, Madison the other (see chapter 6).8

  Two years later, President Washington dispatched Chief Justice John Jay to Britain to negotiate a treaty. When Jay returned, treaty in hand, several representatives argued that because the treaty dealt with commercial matters constitutionally under the jurisdiction of the House, the treaty could not take effect unless the House approved it. Yet the Constitution stated clearly that the Senate ratifies tr
eaties, making no mention of the House. Who was right—or were they both right? Had the Constitution given mixed messages here? And what was the head of the judicial branch of government doing on a clearly executive mission? The Constitution neither authorized nor prohibited such a move.9

  In 1798, when the Alien and Sedition Acts banned certain forms of dissent and authorized the president to deport enemy aliens, did those statutes violate the Constitution? If so, did states possess the right to declare such federal laws “void and of no force” or to “interpose” between that law and the citizens (see chapter 5)?

  And so it went. Even though the Constitution was indelibly set in print, its meaning was still in doubt.

  Worse yet, the framers failed to stipulate who was to settle interpretative disputes. In Hylton v. United States (1796) the United States Supreme Court determined that a federal carriage tax was constitutional, and in Marbury v. Madison (1803) it determined that a provision of the Federal Judiciary Act of 1789 was unconstitutional, but in neither case could justices point to a specific provision in the Constitution granting the High Court the authority to be the final arbiter on issues of constitutionality. Though judicial review had its advocates, the notion that judges alone could settle constitutional disputes was not widely accepted in the founding era. Each of the early presidents thought he had the right of interpretation, at least in matters pertaining to the executive branch of government. Congress thought it was empowered to determine the constitutionality of the laws it passed. Meanwhile, “We the People,” as actual parties to the agreement that enshrined the Constitution as the law of the land, thought they had the ultimate say.

  But which people? In the 1790s opposing political camps laid claim to their own interpretations of the Constitution. In several communities on the Fourth of July, each side staged its own patriotic parade. Effigies were burned and declarations made: we are the real Americans, the others not. The men who had written the Constitution were themselves divided, although more sided with Hamilton and Washington than with Madison.10

  The Constitution did not address these underlying methodological questions, nor did it embed any practical suggestions within its structure. In 1796, eight years after the document’s ratification, Madison hinted at a method of constitutional interpretation, but his choice was not what we might suspect. Today, people seeking to discover the original intent of the Constitution turn first and foremost to the authority of its presumed “father,” but Madison himself scorned appeals to the framers. Arguing that Jay’s Treaty required the sanction of the House as well as the Senate, he stated,

  [W]hatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in expounding the constitution. As the instrument came from them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it, not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.11

  Legally, Madison’s argument seemed sound. Since the Constitution, like any contract, was a “dead letter” until signed, or in this case ratified, the proceedings leading to ratification took precedence over the “General Convention,” which had only proposed it. Yet Madison also had a personal reason for insisting that people look beyond the framers to determine the Constitution’s meaning. His own notes of the debates at the Federal Convention would be an invaluable reference if people turned to the Convention’s proceedings as the final authority, yet he felt committed to keep that work secret “till the Constitution should be well settled in practice, & till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account.” Disclosing the repugnant details of the debates at the Convention would embarrass the framers, undermine respect for the Constitution, increase partisan divisions in the new republic, and violate the framers’ pledge of secrecy. Honesty and good sense kept Madison from publishing his notes, but this stricture also prevented him from endorsing any investigation into the framers’ intent.12

  Elbridge Gerry agreed with Madison that it would be “improper” to cite any of the framers in defense of a particular position. “The opinions of the individual members, who debated, are not to be considered as the opinions of the convention,” Gerry said. But unlike Madison, he placed no stock in the presumed authority of ratification conventions either. “The Union at that time divided into two great parties,” Gerry said, referring to the Constitution’s proponents and opponents. “The object on either side was so important as perhaps to induce the parties to depart from candor, and to call in the aid of art, flattery, professions of friendship, promises of office, and even good cheer…. Under such circumstances, the opinions of great men ought not to be considered as authorities, and in many instances could not be recognized by themselves.” Partisan debates were no place to look for definitive meanings.13

  With no prescribed method for settling interpretive differences, disputants argued however they might. During the 1791 national bank debates, Fisher Ames, a Massachusetts representative, noted that for the previous two years, since the new Congress first met, “we have scarcely made a law, in which we have not exercised our discretion, with respect to the true intent of the constitution.” They picked through the text, revealed inconsistencies in opposing positions, appealed to so-called first principles, and sprinkled their arguments with quotations from the ratification conventions and suppositions about the framers’ intentions at the Federal Convention. With no published record of the framers’ debates, however, senators and representatives who had been there could only say, “as I recall,” while those who had not been delegates were left to speculate.14

  Even Madison could not resist appealing to the framers on occasion. When opposing Hamilton’s national bank in 1791, he “well recollected that a power to grant charters of incorporation had been proposed in the General Convention but rejected.” Unlike other framers, who relied only on their memories, Madison could consult his own notes, although he did not publicly admit this—and his notes for August 18 and September 14 indicated that he had been the one to make that proposal (see chapter 5). No matter that he had reversed positions; the defeat of his own motion seemed to demonstrate that the Convention had opposed granting powers of incorporation. Despite claiming that the framers made poor “oracular guides,” Madison called upon them when he needed to score a crucial point.15

  Nor did others hesitate to seek the framers’ support, if such authority could bolster their arguments. Appealing to the framers was grounded not on solid theory, as Madison and Gerry pointed out, but on pragmatic wisdom. It produced results. In the 1790s, with no published records at their disposal, Americans allowed themselves to believe that the framers acted with great equanimity, unaffected by partisanship, and since they were the ones who wrote the Constitution, they were the ultimate authorities on what it meant. Only a few years after the Federal Convention, the mystique of original intent was setting down roots.16

  For the better part of two centuries, Americans of various persuasions appealed to what we now call original intent. In 1857, Chief Justice Roger B. Taney, delivering the opinion of the Court in the famous Dred Scott case, upheld the exclusive right of slaveholders over their so-called property. “The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted,” Taney wrote. He then outlined a history of slavery in America, up to and including the writing of the Constitution, to demonstrate that blacks, for the founders, were not to be included in “all men are created equal.”17

  In Reynolds v. United States (1878), Chief Justice Morrison Waite cited Jefferson�
��s now famous claim that the First Amendment built “a wall of separation between church and State.” Even though Jefferson made this pronouncement in 1802, he had prepared the first draft of what would become Virginia’s 1786 Statute for Religious Freedom, a precursor to the First Amendment, and that qualified him as an authority on the true meaning of the First Amendment. Chief Justice Waite wrote, “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.” Through the doctrine of original intent, the “wall of separation” was inaugurated into First Amendment jurisprudence.18

  Social transformations in the late nineteenth and early twentieth centuries favored a rival interpretative approach. The Constitution, drafted in and for a different time, would need to adapt, many held. “Government is not a machine, but a living thing,” President Woodrow Wilson said in 1913. “It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.” The Constitution, then, should be interpreted “according to the Darwinian Principle.” Although this “organic” view came to shape many Supreme Court decisions, some justices stuck closely to the historical founders. In Griswold v. Connecticut (1965), when the Court determined that the Fourteenth Amendment implied a “right to marital privacy,” Justice Hugo Black dissented: