Interpreting the U. S. Constitution…What Did the Framers Intend?

With the battle for President Obama’s first nomination of a Supreme Court Justice beginning it seems appropriate to re-post this very important reminder of what the Framers of the U.S. Constitution intended for interpreting the U. S. Constitution. If you really want to understand the debate that will play out over the next number of months regarding the court as policy maker verses the Court as interpreter of the original intent of the U. S. Constituion, then read this introductory post and download the scholarly document authored by Professor of Law, Robert G. Natelson entitled, The Founders’ Hermeneutic: The Real Original Understanding of Original Intent(in a pdf format) for further review and study.

Here is the original post from March 1, 2009 on the For Freedom’s Sake blog.

The U. S. Constitution is the cornerstone of freedom in American which binds our government to the philosophical ideals spelled out in The Declaration of Independence as these self-evident truths, “…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….” For over 200 years we have enjoyed the greatest freedom of any people on earth as a result of a republican form of government as established by The U. S. Constitution.

One must wonder how such a young nation as ours has succeeded in becoming the leader of human freedom and prosperity in the world. The indisputable evidence for the framework and outworking of that freedom and resulting prosperity is the genius of the U. S. Constitution. Professor Charles Howard McILwain in his book, “Constitutionalism Ancient & Modern,” quotes Thomas Paine writing,

the recent written American constitutions are ‘to liberty, what grammar is to language.’ In another place, speaking of constitutions in general, he says: ‘A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right.’ ‘A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.’

If Thomas Paine is right, when he asserts that a governmental act contrary to the constitution is an act of “power without right,” then as a free people we must strive to understand how the U. S. Constitution limits the power of government and protects our life, liberty and property. Professor McILwain makes the case that a choice must be made between the rule of law or force. McILwain writes:

THE TIME seems to be propitious for an examination of the general principle of constitutionalism – our own Anglo-Saxon brand of it in particular – and an examination which should include some consideration of the successive stages in its development. For perhaps never in its long history has the principle of constitutionalism been so questioned as it is questioned today, never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedure of law and the processes of force which seem so much more quick and effective. We must make our choice between these two, and it must be made in the very near future.

The urgency of McILwain’s plea must awaken us from our stupor and inaction in the battle to preserve the U.S. Constitution and thus our freedom. One important battlefield where preserving constitutionalism is being waged is in the arena of interpretation. David Forte, in his article, “The Originalist Perspective” published in, “The Heritage Guide To The Constitution,” writes,

Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution – the supreme law of the land – as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a ‘living document’ with no fixed meaning, subject to changing interpretations according to the spirit of the times.

That theory – a “living constitution” – has been laid to rest, in my opinion, by the scholarly research of Robert G. Natelson, Professor of Law at the University of Montana. Professor Natelson’s research entitled, “The Founders’ Hermeneutic: The Real Original Understanding of Original Intent,” was published in the, Ohio State Law Journal. The introductory paragraph reads,

This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U. S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were “original-understanding originalists. This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the Constitution’s original public meaning.

Professor Natelson, has kindly, given For Freedom’s Sake, permission to make his Article available as a free downloadable PDF file. Click here to download. Please read this document and be informed as to it contents. Send it to your friends or send them here.

Also, visit the following excellent websites below which are managed by Professor Natelson:

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, www.umt.edu/law/original-understanding and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

This Website is Professor Natelson’s home site at The University of Montana

http://www.umt.edu/law/faculty/natelson.htm

This website provides a portal for selected scholarship that examines the original understanding and original meaning of the U.S. Constitution. A secondary purpose is to provide links to online resources useful to those researching the Constitution’s original understanding or original meaning.

http://www.umt.edu/law/original-understanding/

For Freedom’s Sake, thanks Professor Robert Natelson for his kindness to make this important scholarly research available for free on our blog. It is a honor to promote this excellent work.