My New Book: The Founding Fathers Guide to the Constitution

[Brion McClanahan]

The main issues as I see them:

1. How do we separate meaning from intent? And thus how do we avoid the intentional fallacy?
2. How does this interpretation avoid the scathing indictment of the judicial use of legislative history as voiced by conservative scholars like Adrian Vermeule?
3. As a subset, how does this account for the fact that the rhetoric of ratification was likely pragmatic itself - that, in essence, any ratified document is to some extent an incomplete theorization?
4. Do we believe that the Framers - who were schooled in Classical and European philosphy, and thus well aware of the limits of language, its flux and its flaws - thought that their meanings would be static and permanent over time?
5. Do we believe that the Framers had an interest in keeping the Constitution static over time?
6. Do we believe that the ratifying parties had an interest in keeping the Constitution static over time?
7. One more: what do we do about the fact that 36 states joined the union after Marbury?* I.e., they joined a Union that already deviated from "original" intent?



*I.e., or any of a number of opinions that constitute the slow march away from original meaning/intent. In other words, why would late-joining states be bound by some law other than the law to which they agreed to join?

1. If you and I wrote a legal document, a compact between parties, and then wrote volumes about what we intended it to mean, is that what it means or does it mean something else? And when Virginia, for example, used specific language during the ratification process that said if any future party deviated from that compact it could in essence secede from the compact, what does that tell you about what they thought about "static over time?"

2. As I have already said, and as the founding generation were well aware, a written constitution is different from an unwritten constitution. A written constitution is permanent, while an unwritten constitution is "amenable" as you said earlier. We have a written constitution. I misread your language to begin with, but it makes no difference. A written constitution is "amendable" but not "amenable." Why do you think they called the first American constitution the "Articles of Confederation and and Perpetual Union," and said the Constitution would form a "more perfect Union"? There was no pragmatic "theorization" about the ratification process. Those who opposed the document were told that the powers of the general government would be circumscribed by the "delegated" and "enumerated" lists in the document. If not, the Constitution would not have been ratified. The record is clear. Opponents insisted on the 10th Amendment (which was almost always first among proposed lists for a BOR), to protect the powers of the States and reaffirm that the powers were in fact "delegated." A delegated power can be rescinded.

3. The opponents of the Constitution consistently pointed out that yes, language and men could change and manipulate the powers of the general government but were reassured by the proponents that this would never happen. In fact, again as I point out in my book, the way so-called loose constructionists interpret the document is the way the opponents of the Constitution said it would end up being interpreted, which is why they opposed it. The small majorities who supported it in New York, MA, VA, and PA were sold a bill of goods that the opponents were wrong and that the Constitution would continue to provide a limited, general government, not a national one. Again, proponents said the Constitution would remain static over time.

4. The Constitution has never changed, except in so-far as it was amended. So, they joined the original compact with amendments, SC nonsense notwithstanding.

I leave you with this quote from an opponent of the document at the time of ratification:

"It is a matter of immense consequence, in establishing a government which is to last for ages, and which, if it be suffered to depart from the principles of liberty in the beginning, will in all probability, never return to them, that we consider carefully what sort of government we are about to form. Power is very easily increased; indeed it naturally grows in every government but it hardly ever lessens." An Old Whig, 1788.

[Pedro Cerrano]

Your evidence? (I have plenty in my book that points to the opposite, and I read every page of the Philadelphia Convention and the State ratification conventions as well as almost all 27 volumes of the Documentary History of the Ratification of the Constitution, so I think I know a little about this).



Again, your evidence? I refer to my first point. The judicial branch was intended to be the weakest branch of government.



"Jemmy" Madison was but one of the framers and one of the ratifiers, but the documents pertaining to the ratification are there and have been there for over a century. The congress used to debate about the constitutionality of a law before they passed it. Now, they simply pass the buck to the judicial branch and forgo their constitutional responsibility of ensuring that legislation is constitutional before it leaves that branch. And again, only a fraction of the founding generation believed in so-called judicial review, as I point out in my book.

Before you make statements about what the "framers" intended, you might want to crosscheck that opinion.

I think a cursory review of the Federalist Papers and the document itself would suffice.

Further you at least concede that a fraction of the founding generation believed in judicial review, so it's not some cockeyed theory that came out of nowhere.

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution"

What does that mean to you? What do you think the framers meant when they penned that?

[Brion McClanahan]

Actually, I asked a slightly different question:



Since I haven't read your book, I am not either agreeing or disagreeing with your evidence of what the Framers intended. That's why I couched my question in terms of "as you believe the Framers intended."

I am curious, what use did you make of The Federalist Papers in your book? Do you view them as good evidence of what the Framers intended, or not?

Of course I used the Federalist Papers, but they are a small fraction of the material written during the ratification process and are hardly the "Bible" of constitutional opinion. In fact, they weren't influential when they were written as New York only ratified the document by three votes. I would simply say that Hamilton was being rather disingenuous about his intentions when he wrote over fifty of those essays.

[Pedro Cerrano]

Of course I used the Federalist Papers, but they are a small fraction of the material written during the ratification process and are hardly the "Bible" of constitutional opinion. In fact, they weren't influential when they were written as New York only ratified the document by three votes. I would simply say that Hamilton was being rather disingenuous about his intentions when he wrote over fifty of those essays.

Your evidence please.

[Brion McClanahan]

I think a cursory review of the Federalist Papers and the document itself would suffice.

Further you at least concede that a fraction of the founding generation believed in judicial review, so it's not some cockeyed theory that came out of nowhere.

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution"

What does that mean to you? What do you think the framers meant when they penned that?

"A cursory review of the Fed Papers and the document itself would suffice?" That is the most laughable thing I have read yet. In other words, who gives a crap what they said it meant. All you need to do is skim it like a college freshman. It doesn't matter if more than Hamilton, Madison, and Jay wrote it and ratified it, they are all that is important. (And by the way, Hamilton was not at the convention for much of the time and the Constitution resembled less of what Madison wanted and more of what men like Dickinson, Rutledge, Sherman and other wanted so he is no way the "Father of the Constitution"). I would rely more on their public statements than the Federalist and they are out there. And you are a lawyer, right? Pathetic.

If you want to know the last part and need my evidence, read my book. It is all there.

Some of the founding generation anticipated judicial review of federal law only which is a drastic departure from what he have today, and if they thought the SC would rule on everything, the document would not have been ratified.

[Brion McClanahan]

Your evidence please.

Hamilton argued in a way that people assumed that the Constitution would be a general government with limited powers, but once he was Sec of Treasury (and from what he said at the Philadelphia Convention people knew he was a liar), he did the opposite. He was even taken to the carpet about this in the NY State ratifying convention.

[Pedro Cerrano]

"A cursory review of the Fed Papers and the document itself would suffice?" That is the most laughable thing I have read yet. In other words, who gives a crap what they said it meant. All you need to do is skim it like a college freshman. It doesn't matter if more than Hamilton, Madison, and Jay wrote it and ratified it, they are all that is important. (And by the way, Hamilton was not at the convention for much of the time and the Constitution resembled less of what Madison wanted and more of what men like Dickinson, Rutledge, Sherman and other wanted so he is no way the "Father of the Constitution"). I would rely more on their public statements than the Federalist and they are out there. And you are a lawyer, right? Pathetic.

If you want to know the last part and need my evidence, read my book. It is all there.

Some of the founding generation anticipated judicial review of federal law only which is a drastic departure from what he have today, and if they thought the SC would rule on everything, the document would not have been ratified.

Perhaps cursory was the wrong word.

Yes, I do not have the time (or really the inclination) to dig through countless pages of text to provide the evidence to a computer screen -- sorry if that's not good enough for you. I'm not a constitutional scholar. I am an attorney and I did well in Con Law but my current practice deals very little with constitutional research. In law school, when you discuss the origins of the document, you don't read everything written by the folks you mentioned. Sure there are classes that delve deeper into the topic but I didn't take those classes.

I still completely disagree with you, and, despite all your "research" I have a hard time believing that nobody anticipated this. Why even make a judicial branch? Why not just create another chamber of congress to oversee any issues that arose from the Constitution (or, in their infinite wisdom, did they not anticipate issues arising)?

[Frobby]

Of course I used the Federalist Papers, but they are a small fraction of the material written during the ratification process and are hardly the "Bible" of constitutional opinion. In fact, they weren't influential when they were written as New York only ratified the document by three votes. I would simply say that Hamilton was being rather disingenuous about his intentions when he wrote over fifty of those essays.

I didn't mean to suggest that the Federalist Papers were the only source of information about the intent of the Framers or what the States thought they were ratifying. I was merely asking a question.

I don't think there is a "Bible of constitutional opinion." Which is part of the issue. If 90 legislators think it means one thing, and 10 think it means something else, but it takes 100 votes to pass, then where does that leave you when 100 legislators vote for it?

This will be my last post in this thread. Thanks for alerting us to your book, it sounds interesting and I wish you the best of luck with it.

[Lucky Jim]

I don't think there is a "Bible of constitutional opinion." Which is part of the issue. If 90 legislators think it means one thing, and 10 think it means something else, but it takes 100 votes to pass, then where does that leave you when 100 legislators vote for it?

It leaves you with an incomplete theorization, whose true parameters will be determined over time.

[Lucky Jim]

1. If you and I wrote a legal document, a compact between parties, and then wrote volumes about what we intended it to mean, is that what it means or does it mean something else? And when Virginia, for example, used specific language during the ratification process that said if any future party deviated from that compact it could in essence secede from the compact, what does that tell you about what they thought about "static over time?"

2. As I have already said, and as the founding generation were well aware, a written constitution is different from an unwritten constitution. A written constitution is permanent, while an unwritten constitution is "amenable" as you said earlier. We have a written constitution. I misread your language to begin with, but it makes no difference. A written constitution is "amendable" but not "amenable." Why do you think they called the first American constitution the "Articles of Confederation and and Perpetual Union," and said the Constitution would form a "more perfect Union"? There was no pragmatic "theorization" about the ratification process. Those who opposed the document were told that the powers of the general government would be circumscribed by the "delegated" and "enumerated" lists in the document. If not, the Constitution would not have been ratified. The record is clear. Opponents insisted on the 10th Amendment (which was almost always first among proposed lists for a BOR), to protect the powers of the States and reaffirm that the powers were in fact "delegated." A delegated power can be rescinded.

3. The opponents of the Constitution consistently pointed out that yes, language and men could change and manipulate the powers of the general government but were reassured by the proponents that this would never happen. In fact, again as I point out in my book, the way so-called loose constructionists interpret the document is the way the opponents of the Constitution said it would end up being interpreted, which is why they opposed it. The small majorities who supported it in New York, MA, VA, and PA were sold a bill of goods that the opponents were wrong and that the Constitution would continue to provide a limited, general government, not a national one. Again, proponents said the Constitution would remain static over time.

4. The Constitution has never changed, except in so-far as it was amended. So, they joined the original compact with amendments, SC nonsense notwithstanding.

I leave you with this quote from an opponent of the document at the time of ratification:

"It is a matter of immense consequence, in establishing a government which is to last for ages, and which, if it be suffered to depart from the principles of liberty in the beginning, will in all probability, never return to them, that we consider carefully what sort of government we are about to form. Power is very easily increased; indeed it naturally grows in every government but it hardly ever lessens." An Old Whig, 1788.

This basically proves my point about the "rhetoric of ratification."

Also, it appears to me that you're not familiar with "incomplete theorization," i.e., what Fobby noted: disagreeing groups often agree on abstractions that allow a law to go forward. They do not necessarily agree about the details. This is what you've described.

I'm not clear if you've answered my question regarding legislative history. You certainly have not directly addressed it. Proponents of bills say many things to get people to sign. That's why we look to the text itself, and place the interpretive/constructive power in the hands of the judiciary. Looking to the argument around it is - as has been shown many times - a very flawed method of determining intent or meaning.

Also, I didn't say the Constitution was "amenable." The Constitution, as most of us recognize it, is a fixed text that is open to interpretation. The audience - whether it be the bench, or the public - may be amenable to changing its understanding of what the text means.


*BTW, if there's no meeting of the minds - i.e., if "what I intended" could be unilaterally asserted and binding - there's no contract. [EDIT: I overstate this. So, apologies. That said, there's a limit to what a unilateral statement of intent can really tell us.]

[waroriole]

Frobby didn't ask me about the Civil Rights Act of 1964, you did. He asked if we would be better off with the Constitution as ratified in 1787 and 1788 and I said yes.

So with that said, let's flip this on its head. I assume you are a lawyer, so tell me, is the Civil Rights Act of 1964 constitutional? Now, you cannot use case law, court precedent, or anything of that nature. I want you to find the specific language from the Constitution and a defense of your position from the ratification debates, Philadelphia Convention, letters, pamphlets, speeches, etc from the period during ratification. That is the most important period in the process because the way the Constitution was sold to the States is the way everyone in the founding generation thought it would be interpreted. If not, it would not have been ratified.

Once you do that, and if you can't find anything, then answer this question: if we are to throw aside the Constitution at will whenever we think it is necessary to do so for any reason, then why have a Constitution? And if this is the case, what is to stop the government from becoming (if it is not already) a government of men rather than a government of laws?

I can do it without looking at anything but the constitution, it's pretty easy.

The Congress shall have 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. U.S. Const. art. 1 Sec. 8 cl. 18

Specific powers given to Congress are listed in Article 1 Section 8. One of those foregoing powers is the commerce clause, the constitution states:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. U.S. Const. art. 1 Sec. 8 cl. 3.

The Civil Rights Act sought to regulate the commerce of racist businesses whose goods or customers crossed state lines, making it interstate commerce. So, there you have it.

Now, I hope that you will be good enough to answer the question that I asked you earlier. Do you think that we are better off as a society without the Civil Rights Act, and other legislation like it?

[Brion McClanahan]

Perhaps cursory was the wrong word.

Yes, I do not have the time (or really the inclination) to dig through countless pages of text to provide the evidence to a computer screen -- sorry if that's not good enough for you. I'm not a constitutional scholar. I am an attorney and I did well in Con Law but my current practice deals very little with constitutional research. In law school, when you discuss the origins of the document, you don't read everything written by the folks you mentioned. Sure there are classes that delve deeper into the topic but I didn't take those classes.

I still completely disagree with you, and, despite all your "research" I have a hard time believing that nobody anticipated this. Why even make a judicial branch? Why not just create another chamber of congress to oversee any issues that arose from the Constitution (or, in their infinite wisdom, did they not anticipate issues arising)?

I already answered your question. If you have a hard time believing what was said at the time, then I have no hope for you.

[Lucky Jim]

I already answered your question. If you have a hard time believing what was said at the time, then I have no hope for you.

It doesn't sound like you have hope for much of anyone, as you believe that the vast majority of us (and I mean all of us) don't believe in "the law."

[Pedro Cerrano]

I already answered your question. If you have a hard time believing what was said at the time, then I have no hope for you.

You clearly have a hard time believing what was said/written at the time unless it fits in nicely with your thesis.

As for the last sentence, coming from a gentleman like yourself this is a compliment.

[Brion McClanahan]

This basically proves my point about the "rhetoric of ratification."

Also, it appears to me that you're not familiar with "incomplete theorization," i.e., what Fobby noted: disagreeing groups often agree on abstractions that allow a law to go forward. They do not necessarily agree about the details. This is what you've described.

I'm not clear if you've answered my question regarding legislative history. You certainly have not directly addressed it. Proponents of bills say many things to get people to sign. That's why we look to the text itself, and place the interpretive/constructive power in the hands of the judiciary. Looking to the argument around it is - as has been shown many times - a very flawed method of determining intent or meaning.

Also, I didn't say the Constitution was "amenable." The Constitution, as most of us recognize it, is a fixed text that is open to interpretation. The audience - whether it be the bench, or the public - may be amenable to changing its understanding of what the text means.


*BTW, if there's no meeting of the minds - i.e., if "what I intended" could be unilaterally asserted and binding - there's no contract.

1. The Constitution is not a theoretical document as most, including yourself, seem to think, and it was not to the founding generation. It was is many respects a historical document based on their understanding of good government. The founding generation did agree about the details, at least in how proponents said it would be interpreted. That is why it was ratified. If not, it would not have been. Thus, the Constitution was static and concrete. There was a "meeting of the minds." The proponents said it would not be what we call "loosely" interpreted, and they agreed to a bill of rights, what the preamble to that set of amendments called "restricting clauses." I guess you have not read anything I have said about this or you would not continue to ramble on about "looking to the argument around it" or a text "open to interpretation."

2. The founding generation debated almost every clause in the Constitution, in many cases for several days in various States and in the press. We look to the proponents of the document for meaning, because their arguments led to ratification. If they said, "We debated this in the Philadelphia Convention and this is what it means," then that is a pretty good indication of original intent. Or if the statements came from those in the Philadelphia Convention, that is a good indication of original intent.

3. Opponents of the document were much more perceptive as to what the Constitution would do which is why the opposed it. They were told they were wrong, that the Constitution would be followed strictly and no powers could be derived that were not in the document itself, and in the process they explained those powers, to the letter in many cases. Thus you can look to them for meaning. They wrote it. As I pointed out before, if you and I wrote something and said this is what it means, than that is what it means.

4. Your last point before the post script is just plain wrong. The founding generation never said the Constitution's meaning is amenable. Opponents feared it would be, and pressed hard to avoid ratification for that reason, but again, as I have already said several times, THE PROPONENTS SAID IT WOULD NOT BE, so it was ratified by slim majorities in several States, and most importantly the most powerful States.

5. Your point about legislative history is made like a lawyer. Of course you believe that, but position has been abused in the modern era, primarily because the politicians in congress are almost all lawyers. I will tell you what Madison said of this issue in particular during the Philadelphia convention, and I paraphrase, all matters of a judicial nature will be handled by the federal court system while all political matters will be outside of its jurisdiction. This was in response to concerns that the SC would set aside law. In other words, it may, but only as a strictly appellate court, not one charged with "interpretation" of the law. The SC, as ratified, had no "constructive power." The legislature had all power in that regard.

*BTW, I feel like I would be better off banging my head through concrete than to continue this discussion. It is clear that you have not read much from the founding generation, that you have been indoctrinated in our "prestigious" law schools to believe in the superiority of a J.D., and have no clue about original intent. Really, this is pointless.