Properly Interpreting the Constitution
The United States Constitution is not a, “living document.” The Constitution is a partnership agreement between the states. The partnership agreement, with the states as partners, created an agent with carefully delegated and enumerated powers. This agent, the federal government, can only exercise those powers delegated to it via the partnership agreement. All powers not delegated are reserved to the states, or to the people of each state (subject to their respective state constitutions). As such, the Constitution cannot be interpreted as a flexible and open-ended grant of federal power without ignoring its history, the context in which it was ratified, and its underlying logic.
Proper Authority to Interpret
While the Supreme Court is the highest court in the land, the sole and final authority to interpret the Constitution is not vested in a Supreme Court, inferior federal courts, or in any other branch of the federal government. The states, as parties to the agreement, have the last say as to whether the agreement has been violated. James Madison, a nationalist in his own right, made clear it was, “essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated.” Madison continued, “[t]he states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated.”
It’s an absurd idea to think nine politically-connected lawyers from Harvard, Yale and Stanford law schools have the final authority to rule three-hundred million people. The states, acting on the authority of the people of each state, were the partners to the agreement. As such, the states have the final authority to decide whether the agreement has been breached. This is why it’s important for people to understand, individually and collectively, what the Constitution means and how it should be interpreted.
Interpreting a Contract or Partnership Agreement
What is the appropriate way to interpret the plain meaning of a legal contract or partnership agreement? Determine what the parties to the agreement thought they were agreeing to and compare that with the terms and underlying logic of the agreement. Below is an imperfect analogy to American history and ratification of the Constitution, but this example simplifies the meaning of the Constitution and how to think about properly interpreting the Constitution.
Example – Homeowner’s Association Agreement
Persons A, B, C, D and E live in separate homes with their families in the middle of nowhere. Each person has total control and authority on their property to do as they please. However, they all decide they should create something like a “Homeowner’s Association” to address certain common issues they all face. As such, they decide to draft up an agreement. A, B, C, D and E each bring in their own lawyers, respectively, V, W, X, Y and Z, to draft up a partnership agreement to create an agent, the “HOA,” to address these common issues. These issues are: providing defense from outside invaders, building a road between the homes, trash pick-up, installing a plumbing system, a sewage system, delivering mail, and providing the infrastructure for satellite television. In addition, they all agree to the sole restriction of not creating any noise disturbances before 8am or after 10pm.
Drafting the Agreement
When the lawyers met to draft the agreement, Y proposed some wild ideas, such as giving the HOA unlimited rule-making authority. This would empower the HOA to micro-manage the lives of the homeowners. V, W, X and Z vetoed Y’s idea, knowing A, B, C, D and E would never sign off on it. Ultimately, the version of the agreement sent to the homeowners for ratification only granted those powers explicitly delegated to the HOA.
After submitting the agreement to the homeowners, V met with A, W met with B, etc… and the terms of the agreement were carefully discussed. None of the homeowners want the HOA running their lives or interfering in any other matter beyond what the agreement expressly allows. The homeowners agree to the terms of the agreement, but demand a “bill of rights” that makes clear the HOA only has those powers delegated in the agreement. When D met with Y, Y ensured D the agreement would be strictly interpreted and only those powers expressly delegated would belong to the HOA.
The HOA steps beyond its delegated powers
After the agreement was in place, Y held a position of authority within the HOA. Y decided sports were detrimental to the lives of the homeowners and to the tranquility of the neighborhood. As such, Y passed a law prohibiting the homeowners from playing sports on their land, and from watching sports on television. A, B, C, D and E objected to this rule because it fell outside the scope of the authority delegated to the HOA. Y claimed the power to provide satellite television to the homeowners grants the HOA other powers to determine what satellite television programming is permissible to view. In addition, Y claims the authority to ban sports on satellite television naturally flows to the prohibition of playing sports because the HOA has implied powers beyond those expressly delegated. In addition, Y cites the rise of hooliganism in other distant neighborhoods as a legitimate reason for banning sports and sports on television.
The homeowners, A, B, C, D and E protest that this was not the arrangement they agreed to and that the HOA can only exercise those powers delegated in the HOA agreement. W, X and Z, who sit on the HOA court have heard the arguments of each side and will hand down a decision soon.
In this dispute, how should the partnership agreement be interpreted?
Clearly, the HOA rule prohibiting sports programming on television fell beyond the power to provide satellite television programming to the homeowners. In addition, so long as sports activities on the homeowners’ respective properties are not causing noise disturbances before 8am or after 10pm, this recreational activity falls outside the scope of the noise prohibition agreed to in the HOA agreement. Thus, the HOA rule should be discarded because the homeowners, A, B, C, D and E never agreed to such terms.
What if W, X and Z rule in favor of Y and against the homeowners?
To spice things up, what happens if W, X and Z rule in favor of Y’s sports prohibitions? Should A, B, C, D and E sit by and accept this misinterpretation of the agreement? Of course not. What power of self-defense to A, B, C, D and E have aside from voting Y out of office at the next election? Nullification – declaring rules not pursuant to the agreement null and void within each homeowner’s territory. Thomas Jefferson, among others, deemed this the rightful remedy to maintain the integrity of the union and the partnership agreement, while stopping short of dissolving the union.
Interpreting the Constitution – Look to the State Ratifying Conventions for Understanding
Properly interpreting the Constitution should be based on the understanding of those who ratified the document. Without this ratification, the Constitution would not have come into legal existence.
The Constitution was drafted and debated at the Constitutional Convention in Philadelphia. However, the Constitution could not have been brought into existence without the ratification of at least nine of the thirteen states in separate ratifying conventions. Shouldn’t it be the understanding of those who ratified the agreement in the state ratifying conventions that guides interpretation?
To go directly to the source material of what was discussed in the state ratifying conventions, read, Jonathan Elliot’s Debates in the several state conventions on the adoption of the Federal Constitution.
Bill of Rights Added to Expressly Restrain the Federal Government
A “Bill of Rights” was demanded in the several state ratifying conventions to expressly limit the powers of the federal government to those delegated in Article 1, Section 8. In the words of its Preamble, “further declaratory and restrictive clauses” were added, “in order to prevent misconstruction of abuse of [the federal government’s] powers.” As such, the first ten amendments to the Constitution were added as additional, superfluous restraints on federal power. The federal government was not to step beyond its delegated powers, but the federal Bill of Rights was added a couple years after ratification to drive this point home. The federal Bill of Rights took the implicit logic of the Constitution and made it explicit that the federal government could not assume powers not expressly delegated in the partnership agreement. The representatives in the state ratifying conventions heard the repeated assurances of the Federalists that the federal government could only exercise those powers expressly delegated, but additional assurances were deemed necessary.
To ignore this history and claim the Constitution is a “living document” is intellectually dishonest.
Written vs. Unwritten Constitution
It’s worth noting the American generation during the Age of Enlightenment that drafted and ratified the Constitution created written state constitutions and a written federal constitution. These Americans had successfully seceded from Great Britain, which had an unwritten, “living” constitution. Mere customs and traditions guided constitutional meaning in Britain. Americans wanted no part of this English tradition whereby the powers of Parliament and the King could change without restriction. As such, the Americans insisted upon having written constitutions.
Unwritten constitutions provide greater flexibility for government, much like the “living constitution” hailed by those in government and in legal academia. Written constitutions were intended to bind governments down. In the words of Thomas Jefferson, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Jefferson also said, “[o]ur peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
“We the People” vs. “We the States”
Nationalists who advocate unlimited federal power like to note the Preamble to the Constitution begins with, “We the People.” This, they claim, provides proof the Constitution was ratified as a national act by one “American people.” This nationalist argument is without basis on many fronts, but with respect to the Preamble, it originally began, “We the States of…” and listed the states. The Committee of Style and Arrangement changed the original preamble because it was thought to be presumptuous to assume every state would actually ratify the Constitution. Article 1, Section 2 of the Constitution mentions each state and how many representatives each state would have in the House of Representatives until the first census could be conducted. These were the opening terms of representation in Congress, which was far less presumptuous than having listed all the states in the Preamble. As such, this further discredits the modern nationalist arguments that the Constitution was ratified by the “American people” as a whole.
“Living Constitution” is a Doctrine for Consolidating Power in the Federal Government
It sounds cool to say the Constitution is a “living document,” and it might make you sound more enlightened than the average person on the street. However, people who say the Constitution is a “living document” are either (1) ignorant of history and the context and iron logic of the Constitution; or (2) they are aware of and understand the history, but they are intellectually dishonest.
Most people fall into the first camp. Americans generally do not know their history, nor do they care for the most part. It’s typically law professors and politicians who understand what the Constitution means. However, these people either see unlimited federal power as a good thing, or they see any limits on federal power as an obstacle for enriching themselves or other politically favored constituencies. In general, legal academics and “intellectuals” are seduced by Plato’s ideal of the Philosopher King to stand guard as a check on the masses.
In short, the “living constitution” is a consolidation doctrine. This doctrine allows Congress to pass any law it wants, and enables the federal courts to decided cases based on the arbitrary personal preferences of judges. This doctrine seeks to create, and has long since created, the form of centralized government that Americans live under today.
Arguments in favor of centralized government were explicitly rejected in the Constitutional Convention, and in the state ratifying conventions. Arguments today in favor of this centralized, unlimited form of government are intellectually dishonest, but that does not matter. What matters is the current state of affairs, and the state of affairs that has existed for generations. Do not blame Barack Obama, George Bush, or Bill Clinton for destroying the Constitution. The Constitution became irrelevant generations before anyone knew whom these people were.
The Fourteenth Amendment Did Not Radically Change the Constitution
Contrary to mainstream misinformation and Supreme Court decisions rendered in the twentieth and twenty-first centuries, the Fourteenth Amendment did not substantially alter the Constitutional structure or the scope of the federal government’s power. [Click here for more on the Fourteenth Amendment, Naturalization Clause, Privileges or Immunities Clause, Due Process Clause, and the Equal Protection Clause].
Many of the Senators who voted for the Thirteenth, Fourteenth and Fifteenth Amendments unanimously assented to an 1872 Senate Judiciary Committee Report that explained the proper way to interpret the Constitution. According to the Senate Judiciary Committee,
“In construing the Constitution we are compelled to give it such interpretation as will secure the result which was intended to be accomplished by those who framed it and the people who adopted it. The Constitution, like a contract between private parties, must be read in the light of the circumstances which surrounded those who made it. The history of the colonies, the history of the Confederation, and the circumstances under which the Constitution itself was framed and adopted must all be taken into account; and then we must ascertain by reading the whole instrument together the sense in which particular provisions and phrases were employed.”
The Senate Judiciary Committee continued, “A construction which should give the phrase . . . a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument.”
Those in Congress who debated and passed the Fourteenth Amendment expressly stated its limited purpose to grant and protect specific fundamental rights to blacks that were enumerated in the Civil Rights Act of 1866. Based on that limited intent of the Fourteenth Amendment, and given the words of the Senate Judiciary Committee in 1872, consisting of many of the same Senators who voted for the Thirteenth, Fourteenth, and Fifteenth Amendments, there is no intellectually credible way to ascribe a broad and transformational interpretation to the Fourteenth Amendment.
Interpreting the Constitution – Quotations – Consolidated versus Decentralized Government
Nationalists – Consolidated Government
“While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the Fourteenth Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”
Woodrow Wilson, 1908
“The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers.” – Constitutional Government in the United States
Plain Meaning – Decentralized Government
Thomas Jefferson, 1798
“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress” (emphasis added). – Kentucky Resolutions, Resolution 1.