Are the States Primordial? Does it Matter?

Professor Keith Whittington of Princeton University has a primordal or pre-Constitution theory of state power. Professor Whittington argues that the federal government gets its power entirely by transfer of a "specified quantum" of government power from the states. The American states came first, he argues.[1] They were founded long before the Revolutionary war. They did not need to be constituted; they needed only to declare their independence from the British Empire. They were the "relatively natural" political unit that emerged from Revolution. "They were the governments of general jurisdiction with all the accoutrements of sovereignty."[2] The states largely did write state constitutions after independence, but Professor Whittington attributes this to just a "Lockean" phase of 'self-conscious' constitutionalism,"[3] and the state constitutions did not create the states as legal entities.
The federal government is different, he argues. It was created not just by throwing off the crown by a declaration of independence. The Federalists were building something new. The federal government required a reallocation of the political authority already held and being exercised by officials in the states. The Federalists had to wrest some governmental power away to build the new national government.[4] "The Federalists needed to claim and delegate a specified quantum of government power and no more."[5]
The contrary position, with fine support in the historical evidence, is Abraham Lincoln’s position that “[t]he Union is older than any of the States, and in fact, it created them as States.”[6] The federal Congress arose before the independence of the colonies, as a creation of extralegal revolutionary committees working outside of the authorization of the British colonial administration. Before independence, loyalty to the Congress held together the Revolution’s radicals who pushed for immediate independence and the moderates looking for some accommodation with Britain. The colonies might not be able to decide what to do, but they could agree to let the Congress decide. Allegiance to Congress became the primary test of the right to participate in the emerging Revolutionary polity.[7] Even before the Declaration of Independence, the Congress acted as sovereign to conduct first an embargo against Great Britain and then a serious war. [8] Throughout the war and the prior embargo, the various revolutionary committees that took power from the Crown on the local and colony level looked to the Congress for decisions and authority.
The colonies became states under congressional authorization. The colonies looking to write constitutions, not dependent on British control, solicited authorization from the federal Congress.[9] In 1775, Congress responded to requests from Massachusetts, New Hampshire and South Carolina for how to proceed after taking power.[10] Then in May, 1776, the Congress gave general instructions to the respective assemblies and conventions in every colony to suppress the "exercise of every kind of authority under the [Crown] "[11] and to "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”[12] John Adams called the May resolution “most important … ever taken in America."[13]
Tellingly, Vermont, which wrote a constitution and declared independence without congressional authorization, was excluded from the Union until 1791, well after the end of the war and adoption of the U.S. Constitution.[14] Vermont came in only under Article IV, section 3, allowing Congress to carve out territory from New York to form a new state, and only with New York’s permission. New York had a right to territory, which Vermont, notwithstanding its declaration of independence and constitution, did not have. Writing a constitution and declaring independence did not matter. A territory of land became a state only because of the Congress’s authority.
There were continuities from colonies to states. Connecticut, for instance, was so effectively self-governing as a colony that the last elected colonial governor, Jonathan Trumbull, a strong advocate of independence, continued as governor after independence. Connecticut’s venerated 1662 Charter remained untouched, except for amendments to take out references to the king.[15]
Whittington appeals to the "accoutrements" of sovereignty of the states before the Revolution, however, and no colony had "sovereignty" before the Revolution. "Sovereignty" means "supremacy" and no "colony" has supremacy. That is why they are "colonies." If the colonies really passed on their status without break, then the states are still like colonies, accustomed by long practice to a subordinate position and under the British Crown and Parliament.
Those colonies that wrote new constitutions were of course doing so as a part of the revolutionary break from Crown and Parliament. When Whittington calls these constitutions "Lockean" that means the writers perceived themselves as in the state of nature without a legitimate current government and that the consent to government needed to be achieved anew.[16] The state constitutions were not just empty symbolism. State constitutions were tantamount to declared independence. They created new legal entities, not resting on British authority. The states by their written constitutions were denying any continuity with the British colonial entity subordinate that had occupied the same territory as before. And the colonies becoming states wrote their constitutions under the authority and instructions of the Congress.
It also seems fair to describe the formation of the state and federal governments in more muddled terms as both products of small experimental steps pushing each other and evolving together.[17] Neither federal nor state government was hatched full grown. Power was taken from the British authorities in steps. The formation of a Continental Congress with a sovereign’s power to make war and treaties was an early and important part of the process, and undertaken before the states had constitutions. One can emphasize the local aspects of the seizure of power or the national aspects. De facto independence at the township level was achieved early. Still, what states rights advocates need from the foundational myth is not just a muddle, or joint development, but a primacy or "sovereignty" for states, because there is nothing helpful for the states in the written Constitution. Primordial supremacy of the states, however, is asking more than the history will bear.
Judicial doctrine, whatever the history, also says that sovereignty over external affairs transferred from Crown directly to the national government. In 1936, the Supreme Court held that the President had implied powers over foreign affairs beyond those listed, so as to be able to ban export of military goods:
As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency-- namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.[18]

If external sovereignty passed from Crown to national government, then plausibly the power to govern the nation during war -- internal sovereignty-- passed over directly as well. The Congress certainly exercised war powers domestically, even before the Declaration of Independence. Judicial doctrine is not always good history, of course, but for constitutional purposes, the doctrine is better than history because it is binding.
The Articles of Confederation, which preceded the Constitution, indeed adopted the theory that states empowered the federal Congress. On its face, the Articles of Confederation identified the adopting actors of the Articles as “Delegates of States,” authorized to act on behalf of the states.[19] The national government under the Articles was nothing but a firm league of friendship.[20] The Articles are not, however, primordial. They were not adopted until March 1781, not many months before the end of the fighting. The Congress directed the war from the first fighting in April 1775 until March 1781, without the Articles and it declared legal independence from the Crown in July, 1776 without them. In any event, the major difficulty in relying on the Articles to determine authorization is that they have been superseded as a matter of law by the Constitution itself and, as discussed next, the Constitution does not rest upon the states. Indeed, when talking about constitutional law it is seems that the Constitution supersedes all of the history that precedes it. Continuities from the prior history might help us understand the context, but there is no binding constitutional effect to preconstitutional law. State power, before this 1787 Constitution does not matter.

[1] Recovering "From the State of Imbecility." 84 Texas L. Rev. 1567, at 1575 (2006) (hereinafter "Recovering")
[2] Id. at 1575
[3] Recovering at 1576.
[4] Id. at 1576 (emphasis added)
[5] Id. at 1576.
[6] Abraham Lincoln, Special Session Message, July 4, 1861, 6 Messages and Papers of the Presidents, 1789-1897, at 27 (James D. Richardson ed. 1897).
[7] Jack Rakove, The Beginnings of National Politics: An interpretative History of the Continental Congress 66 (1979)
[8] Richard Morris, The Forging of the Union Reconsidered: A Historical Refutation of State Sovereignty over Seabed, 74 Columbia L. Rev. 1056, 1057, 1068-1070 (1974); Richard Morris, Forging of the Union, 1781-1789, at 55-79 (1987)..
[9] Willi Paul Adams, The First American Constitutions : Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 47 (Expanded ed. 2001).
[10] Massachusetts, June 9, 1775, 2 JCC 82-83 (resolving that since no obedience is due to British governor, Massachusetts should govern itself as if he was absent); New Hampshire, Nov. 23, 1775, 3 JCC 319, 326-27 (resolving that assembly should take power from administration and from best government for the people); South Carolina Nov. 4, 1775, 2 JCC at 292-93 (similar resolution),
[11] Preamble to Resolution, 4 JCC. 358 (May 15, 1776).
[12] Resolution, 4 JCC 341 (May 10, 1776)
[13] Letter of John Adams to James Warren,, May 15, 1776, 1 Letters of Delegates to the Congress, 1774-1789, at 677 (Smith, Paul H., et al., eds. 1976-2000) (hereinafter “LDCC”)..

[14] Willi Paul Adams, supra note @, at 91.
[15] Willi Paul Adams, supra note @, at 27
[16] See, e.g., John Locke, Second Treatise of Government §15 in Two Treatises of Government (Peter Laslett, ed. 1965) (saying all men are naturally in the state of nature, until their own consents make them members of some politick society). The Rhode Island town of Scituate, in most Lockean terms, instructed the state assembly that the king had violated the charter of government, so power reverted to the people, and Rhode Island would thus need a new constitution to give legal basis to the government. Instructions of Town of Scituate, cited in Willi Paul Adams, supra note @, at 65. Rhode Island, however, continued to use its colonial charter, only deleting its references to the king.
[17] Willi Paul Adams, supra note @, at 48.
[18] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-17 (1936).
[19] Articles of Confederation, preamble and Article XIII, in 19 JCC 214, 221-22.
[20] Id., art. III, , in 19 JCC 214

Bedford Motion to allow Congress to have the power to legislate for the common interest

I do have a vague recollection that Rakove characterized the resolution that Congress would have the power to legislate for the common interest as a “placeholder,” that would suffice until the question of representation in both houses of the national legislature was decided. Only then, after it became clear who would be wielding the powers invested in the national government, would the delegates be comfortable deciding what powers could be safely given to the national government. I wonder whether the small states would have gone along with providing Congress with the quite broad power to legislate for the common interest if both houses were based on proportional representation. They well may have walked out.

Regards,

Steve Gutstein [Esq. NYC]

Calvin Johnson responds:
No, the Bedford Motion, that Congress would have the power to legislate for the common interest is late, and it is opposed by all the people who ever spoke in favor of an enumeration, and they lose. Most (but not Sherman or South Carolina) turn around and vote for the whole Resolution once the Bedford motion is attached. It is a real vote on the merits, with the voters expecting that outcome because it is a binding Resolution on the drafting committees.

Madison, who makes the place holder argument, is a representative of Virginia , and he is offended by Delaware and evil Rhode Island, getting 2/13 of the vote for something like 2% of the population. But he is bluffing about restricting federal power. He is at that point too much of a dedicated nationalist. Even after the end of the Convention (when the accursed equal vote per state is put into the Senate) he is upset that Congress has too little power, not too much. He still wants his veto over the states “in every case whatsoever” even after Delaware and RI are so overrepresented. I have a long section in Righteous Anger looking at the question of whether Madison became Jeffersonian to restrict the national government early and concluded, most certainly no.
Delaware does tell the Convention it will have to leave if it does not get equal vote power per state. But Bedford motion calling for power to legislate in all cases for the common interest of the union is written by Gunning Bedford of Delaware. Delaware becomes a big power to the federal state and ratifies unanimously.

vis-a-vis Gordon Wood

1. In his review of my book, Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution (Cambridge University Press 2005) [New York Review Feb. 23, 2006], Gordon Wood accuses me of falsely claiming that "it is common to see the Constitution as described as written to limit the federal government and to protect states rights." "This is news to me," Wood said, "and not at all credible. I know of no interpretation of the origins of the Constitution that has ever claimed such a thing."
Alas, in legal circles, the interpretation of the Constitution as reining in national power is not only common, but probably dominant. In recent years, the Supreme Court has been creating new doctrines to restrict the federal government and enhance state power, based on its understanding of the "original intent" of the Constitution. The Court has denied Congress the power to protect rape victims, to ask sheriffs to check arrest records for gun control, or to ban guns from schools. It has been expanding state immunity to process of law. The Court has been going beyond the words of the Constitution to find that the restraints on federal power are “fundamental postulates implicit in the constitutional design.” (Justice Kennedy). There is a "relatively stable majority [of the Supreme Court] committed to enforcing limits on the federal power and to protecting the integrity of the states," says Professor Richard H. Fallon of Harvard. Historian Forrest McDonald says that while the Court is giving states rights a new friend, it is fickle friend, because the decisions are 5-4. The newest appointments to the Supreme are sympathetic to restraints on federal power, however, so that the Court may well soon become a steadfast friend of the states vis-à-vis national power.
Among legal academics, the school of thought associated with the Federalist Society is quite strongly committed to checking Federal power. Among Gordon Wood's former colleagues on the Northwestern Law School faculty, I would list Professors Steven Calebresi, John McGinnis, and Stephen Presser as within the restrict-the-national school of the Federalist Society.
States rights interpretations of the Constitution have also been important historically. Jefferson was elected on a platform of keeping the federal government entirely out of domestic affairs. Jefferson claimed in 1798 that under a true reading of Constitution, a state could declare “nugatory” and “altogether void, and of no force” federal laws that it did not like. Calhoun's interpretation of the Constitution also left all effective power in the states. Indeed, "from the presidency of Jefferson to that of Abraham Lincoln," as Forrest McDonald puts it, "the consensus was that Jefferson had been right in calling the Tenth Amendment [limiting the federal government to delegated powers] the foundation of the constitutional union.” Professor Wood and I might well be in agreement that the anti-national interpretations of the Constitution are unfortunate and unsound. But they do exist.
As the Supreme Court has moved to base its constitutional decisions on historical original intent, the historians in our finest academic departments have retreated from the field and moved over to social and cultural history. Wood is one of the last historians of the old school, generally interested in ideas and political decisions. The distain that historians exhibit to all things of the law means that the Supreme Court's new historicism is taking place without the aid or support of professional historians.

2. My book, Righteous Anger, rejected the argument important to Wood that the Constitution was an anti-democratic document written primarily to suppress paper money. Wood is a neo-Beardian on the issue, and Beard anachronistically seems to have thought the Constitution was written primarily to crucify the common man upon a cross of gold. (William Jennings Bryan). Wood has described the Constitution as an as “an aristocratic document designed to check the democratic tendencies of the period.” Wood may be easing off that position because, in his review, he expressed a fully-justifiable admiration for James Wilson, who was both an important influence on the Constitution and also a steady advocate of democracy. Still his review also argues that the Constitution originated because Madison and other Federalists wanted to limit "majoritarian factionalism" in the states and that expression is at least an echo of his long-standing claim that the Constitution is anti-democratic.
Righteous Anger rejected Gordon Wood's position that paper money was core to the ratification dispute. The Constitution does prohibit state paper money. The failure of the Continental dollar stole from all who held it and gave paper money a bad smell. Paper money was not an issue that divided proponents of ratification from Anti-Federalist opponents. In the key states of New York and Virginia, the Anti-Federalists objected to almost every sentence as the Constitution was discussed line by line, but they did not object to the ban on paper money. The Virginia Anti-Federalists said that "it was unanimously wished that the prohibition on paper money should not be objected to" and Patrick Henry, their leader, said "I am at peace with the subject." George Mason, perhaps the most important Anti-Federalist, had tried to ban "book debt" which was the institution by which the small farmers got their guns, kettles and seed from the storekeepers, so he was no friend of yeoman debt. More generally, the Constitution can not be understood as written by creditors trying to collect their debts, but by debtors who were trying to restore their credit. The driving first purpose of the Constitution was to give the federal government the power to tax so it make payments to restore the public credit, so that the federal government could borrow again in the next, inevitable war.

It is also time that we stop treating the Anti-Federalist opponents of the Constitution as if they were democratic heroes. Neither side was consistently democratic by the standards of our time, but the Anti-Federalist opponents were worse. The Anti-Federalists tried to beat the Constitution by arguing that only the typical foolishness of the people would allow ratification and by arguing that the Constitution was too democratic. Federal Farmer, perhaps the best of the Anti-Federalist Essayists, expressed his shock that the Constitution would allow federal office holders to be “Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not.” Federalist defenders of the Constitution were the ones who argued that the absence of a religious test or property ownership requirement for office was a virtue of the proposal. To quote Righteous Anger,

It was Anti-Federalist Patrick Henry who said that Jews, Mahometans, Deists,
and pagans professed and practiced such abominations as rendered their persuasions unworthy the sanction of legal support. It was the Anti-Federalists who denounced our Constitution because it allowed office holders who were “Quakers, Mahometans, Diests, abominable wretches, Negroes, Beggars and lastly Jews.”
Wood's title for his review asked the question, "How Democratic was the Constitution," and the quick answer is "more democratic than the opposition."

The Anti-Federalists were also strongly committed anti-democrats, necessarily so because of their game position. The Federalists proponents of the Constitution had ignored their instructions to send the document for ratification by the state legislatures, in reliance on the People. A Constitution, Jefferson had written, has to be written by the people to prevent a subsequent legislature from changing its mind and passing later legislation. So the Federalists went to the People.
The Anti-Federalists protested the move. “Who authorized them to speak the language of, We, the People, instead of We, the States?,” Patrick Henry asked Virginia. “States are the characteristics and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people.
It was the Federalists who celebrated basing the government upon the legitimization of the people. “[I]n this government,” James Wilson told the Pennsylvania Ratification Convention, “the supreme, absolute and uncontrollable power remains in the people. The people were the supreme power “from which there is no appeal.” The consent of the people, Hamilton stated in Federalist No. 22, is that “pure original fountain of legitimate authority.
The posture of the debates put the Anti-Federalists into denying the power of the people. Anti-Federalist Governor George Clinton, for example, warned New York about the “frenzy” of the people, who could be guilty of “most imprudent and desperate measures.” Clinton said he knew that “the people are too apt to vibrate from one extreme to another. Anti-Federalist “Federal Farmer” condemned “levellers” and “little insurgents, men in debt, who want no law, and who want a share of the property of others.” Anti-Federalist Mercy Otis Warren of Massachusetts denounced the “supple multitude” who were paying a “blind and idolatrous homage” to false leaders. In private, she expressed her hope that a few virtuous men might rise and stand above the “absurd enthusiasm that often spreads itself over the lower classes of life.” Anti-Federalist Eldridge Gerry of Massachussets warned the proponents of the Constitution that “the evils we experience flow from the excess of democracy” and that he “had been taught by experience the danger of the levilling spirit.” Anti-Federalist Melancton Smith, the probable author of the Brutus essays, is a hero to the Anti-Federalists, and he told the New York convention that the “people are frequently incompetent to deliberate discussion, and subject to errors and imprudences.” The Anti-Federalists were not democrats.


3. Gordon Wood and I, for all of our agreements on so many issues, disagree about what factors to look for to explain history. Wood is an ideological historian, a dying breed within his discipline, who wants to explain the history of the 1780's and 1790's in terms of ideas. In my studies I often found that the ideological arguments were just thin covers for programs the speaker wanted to accomplish, and that the debaters were not very loyal to ideas once their programmatic needs changed. The richest, most t philosophical argument in the debates, for instance, is James Madison's argument in Federalist 10 that the extended republic will be a better protector of individual rights than the states. The position is a generalization from religious disputes: To cite Voltaire's quip: if there is one religion, there is tyranny; if two, civil war; but if there are 13, then all will be at peace with each other. Each state tended to be dominated by one denomination, but on the Federal level, there were too many competing denominations for any one to be oppressive. For all of the strength of the idea, Madison abandoned the whole argument by 1791. By 1791, Alexander Hamilton and the Washington Administration was the target of Madison's energy, and not the feudal barons in the states. In 1791, Madison called upon the small, homogeneous states like Virginia to be a check upon the national government, and that argument is exactly the opposite of Federalist 10. The best philosophical position in the whole debate had no legs.
Righteous Anger is a history of the Constitution in terms of what the proponents were trying to accomplish. Words are deeds. They are used to invigorate your friends, paralyze the opposition and a convince a few fence sitters. Take the words away from the program and the words are out of context and you do not know their meaning. "The Constitution was once a weapon in a hard-fought war and its weapon-like characteristics are core to its historical meaning" (Righteous Anger)

What does Quentin Skinner (Words are Deeds) Mean?

Lawrence Solum of San Diego and Illinois Law School and of Legal Theory Blog asks:

I'm curious as to your take on the "original meaning originalism" versus "original intentions originalism" debate--and in the
relationship between that debate and Quentin Skinner's work.

Calvin Johnson Responds:
"Original intent" or "motive" is commonly used to refer to non-binding motives. Only the meaning of the authors of the Constitution are binding on us, but not their motives or their intents. Jed Rubenfeld, Revolution By Judiciary (2005) uses intent as the part of the Founder's statements that are not binding on us. Sometime motive refers to the private, off the deal intents that do not get incorporated into the meaning.
I am not very fond of the terminology. An author has an intent in writing. To strip the author's intent from the words leaves the words as random. I understand that a contract draftsman can be bound by things he said as the other party understands them even if that is not what the draftsman meant or intended to say. Still what the author meant or intended to say is a perfectly sound basis of what words mean.
All words are deeds, including the Constitution, and they are written to accomplish something. What they are trying to accomplish is the core meaning. Yes the words give us the opportunity to make analogies. Freedom of the press means we can go beyond the core Zegler case (whatever that means) to other cases. But the thing they wanted to accomplish is the holding, not the dicta, and it is binding.
Quentin Skinner is most wonderful in insisting that we look at all words in strict hsitorical context, blind as they were as to the future. We who can see the next 220 years (the future is past to us) need to have the words cover decisions now, so we forget the founders could not see the future and we impute prescience to them. The Founders in fact were not trying to solve our problems. It was hard enough to solve the hard fought partisan issues of the day. If they could be solved right then that was what counted.
The words can be used as analogies for future cases. But that is our decisions. For the Founders the meaning is the immediately program. The program is the hard rock they cared about. There are ripples but the ripples lost their energy for the Founders after the first wave or two. The Founders were no more trying to solve the problems of 2006 then the editorials and op-ed pieces are really trying to solve the problems of 2226.

Lawrence Solum responds:

Larry Solum wrote:

What does this mean for Johnson's assertion--To strip the author's intent from the words leaves the words as random? That assertion is based on an erroneous assumption--that all meaning is speaker's meaning--or in the case of a constitution, that all constitutional meaning is framer's meaning. That's false. Framer's meaning can be distinguished from clause meaning. And constitution's should be interpreted in accord with their clause meaning, not framer's meaning, But that's another argument.

Johnson responds:
We do need some more distinctions, because your “clause meaning” assumes your conclusion, I think erroneously. Let us use “binding meaning’ as the ultimate winner in the interpretative battle. I do think that Framer’s meaning probably should win in an interpretative battle, vis-à-vis ratifiers’ meaning but mostly because ratifiers’ meaning is incoherent mish mash.

1. Framer’s intent trumps abstract. First let us run a hypo in which there is contrast between speakers’ meaning and “clause meaning” but clause meaning loses out. Suppose I say that that there is a “plethora of good sense in this arbitration.” Now the truth is that I meant there was almost no good sense in the conversation, but I was showing off using a word “plethora” I did not quite have control of. I did not mean swelling or excess of good sense, and indeed too much good sense is not a pathology in my mind. The listener knows the true meaning and exploits my error, telling the judge that I had confessed off stage that no more arbitrators or explorations were needed to help reconcile because there was an excess of good sense already. The clause meaning is that I did in fact say there was a pathological excess of good sense. But speakers meaning, including the error of usage, should prevail because in context, speaker’s intent was different than dictionary meaning. If the listener were fooled, and made sense of plethora infact as “too much” already, then perhaps we have a contest over binding meaning. But it is not clear the listener’s meaning should prevail even though excess is the correct definition from the original Greek. Perhaps the listener had a duty to ask, given the oddness of the syntax ”too much common sense” In any event, you can not presume without error, as you have, that dictionary meaning (clause meaning) should prevail. Intent counts. Win? Maybe, maybe not. But speaker intent counts.

I have two example in mind in which I think the Framers intent should prevail even though it plausibly private language. . The Framer’s avoided the word “slavery,” using eg “other person” in the three-fifths clause. If we come to a dispute on voting power or allocation of taxes, you have to understand that other person means slave and not literally “other person.” Prisoners for instance are not “free,” but they are also not counted at three fifths. That is not a dictionary or abstract meaning, but Framers’ intent should trump.

Framers used “duty” as a synonym for “stamp tax” They wanted the Federal government to have the power over stamp tax but did not want to say the word given the Stamp Tax Crisis of 1768. “Duty” had lots of other dictionary definitions at the time, but they meant stamp tax.



2. Ratifier intent is incoherent. In the Constitutional debates it is incoherent to say that ratifier meaning counts, unless you specify which the 3 million meanings you are referring to. Read the debates in the raw, from eg Documentary History of the Ratification. The debates are filled with turgid passages that you read and think, “what is he trying to say”? There is lot of doggerel, that we don’t find funny. The recurring pattern is “enough about you, let us talk about me,” and the Anti-Federalist goes off into his concerns. The Anti-Federalists are paranoid and they find evil intent in every passage, even those with a plethora of good sense. To our ears the speaker’s interpretation of the Constitution does not seem very close to the text, But who are we to judge. This is from Righteous Anger at the Wicked States:

The ratification debates are also inevitably cacophonous because of their structure. After Philadelphia, there was never again a single room in which every one had even to pretend to reach a single meaning for the Constitution. In Philadelphia, elected delegates argued from May to September to reach a single draft. They bickered over language, they delegated hard issues to one committee after another and at the end they signed a single draft. The single room, long discussions and single set of words may not mean that there was only a single understanding, common to all, but it does hedge in the understandings so they are collected around a single document with a shared meaning. By contrast, the ratification debate extended along the entire seaboard with a population of 3 million. There was, as Joseph Story said, “[n]o certainty either that different state conventions gave the same interpretation or that the same reasoning prevailed even within the majority of a single convention.”[1] The ratifiers who published their views had a slightly different understanding of the significance of the words, even when they debated the fixed language clause by clause. Readers in the debates commonly missed the point, or came up with interpretations that we do not find as matching the words, although that was what they understood to be the meaningful point. Once the document left Philadelphia, there was also no longer any mechanism to force a single understanding. It is not coherent to say that the Constitutional Federal Convention in Philadelphia misunderstood or made a mistake about the Constitution. What they understood is what the Constitution was. It is coherent to say that this or that ratifier, or even this or that state convention, made a mistake and misunderstood the Constitution



I do think the binding meaning is the Philadelphia meaning. I think Jefferson-Madison liked the ratifiers meaning because it allowed them to cherry pick, getting in some arguments about restrictions on the federal government that are definitely not text based. The Framers took out the old Articles of Confederation limitation that the Congress would have only the powers expressly delegated to it, because the limitation had proved to be disastrous to the Union and because they wanted the Federal passport although it was not enumerated. In the ratification debate they rewrote the text to put back in. “expressly delegated.” If it is a written Constitution we are looking at, however, the non-Article V amendment should not stick. Whatever the binding meaning is, however, you need some language that keeps dictionary and binding meaning apart because the dictionary or abstract meaning does not always trump.

.

Righteous Anger

Righteous Anger Webblog welcomes comments and discussion