By Robert G. Natelson
Rob Natelson, the Independence Institute’s Senior Fellow in Constitutional Jurisprudence, is one of America’s best-known constitutional scholars. In opinions issued during the most recent U.S. Supreme Court term, he was cited 12 times in two separate cases. Rob was a law professor for 25 years, serving at three different universities. Among other subjects, he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. He is also the Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. Rob is especially known for his studies of the Constitution’s original meaning. His research has carried him to libraries throughout the United States and in Britain, including four months at Oxford. The results have included several break-though discoveries.
(Jon’s note: During my teen years I spent 4 years in Montana. I first met Rob back in 1996 in Missoula, Montana at a local Pachyderm Club meeting. He was a candidate for Governor of the Big Sky State. At the time I was 16 years old and quite insignificant in the grand scheme of things, yet Rob always took time to impart his wisdom to me and entertain my conversation at his office at the University of Montana Law School. In part, thanks to him I have the strict constructionist views which I hold today. Please enjoy reading this excerpt from his latest book.)
A Tavern in 1791. . . .
It is Thursday, December 22, 1791. You live in Philadelphia, currently serving as the temporary capital of the newly-created United States of America. It has been only fifteen years since Independence was declared, and less than three years since the federal government began functioning under the United States Constitution.
For a long time, it had been touch-and-go as to whether the Constitution would be ratified at all. Two states initially refused to agree, and of the remainder five had approved the document only after the Constitution’s supporters and moderate opponents had cut a political deal calling for a Bill of Rights. As soon as the new Congress met, two of the most important states, Virginia and New York, petitioned for a convention for proposing amendments to the Constitution. Only after Congress had approved the Bill of Rights did Virginia and New York abandon their petitions and only then did the last two hold-outs, North Carolina and Rhode Island, join the union. The fourteenth state, Vermont, came in at the beginning of 1791.
Earlier on this day, you learned that the Bill of Rights finally had been ratified on December 15. So now, you reflect, the union is reasonably secure, evening is approaching, and your work day is done—and you are on a Philadelphia street corner with nothing particular to do. The weather is chilly and blustery, but there is a cure for that: A warm punch in a cozy tavern.
You enter the tavern and look around for a seat. The place is nearly full. But there is bench space at a long wooden table at one side of the room. Sitting around the table are men you recognize— eminently respectable men—some of Philadelphia’s leading judges and lawyers. They are deep in debate about an abstruse point of real property law. Not being a lawyer yourself, you do not think of that sort of discussion as the key to a good time. But there are no other seats.
You slip into the empty chair and order your punch while the talk swirls around your head. Eventually, you decide to turn the conversation elsewhere. You give a little cough.
The lawyers had barely noticed you, but now they turn their heads and break off the debate. “I regret that I feel unqualified to comment on your subject,” you say. “But, gentlemen, you know I am not a lawyer. May I suggest another topic?”
They seem interested. The prior discussion had been wearing thin anyway.
“You no doubt have observed,” you continue, “that ten new constitutional amendments were proclaimed last week.”
“Yes,” responds one of your listeners. (You know him to be a distinguished judge.) “They should work some change upon the system.”
“That is exactly what I wished to pursue,” you add. “What is that system? And what change does the Bill of Rights effect upon it?”
The lawyers look at each other. One of them—he is particularly known as an expert in wills and fiduciary trusts—smiles. “Well, my friend, that is an expansive inquiry whose response might consume some time. Are you otherwise engaged for the next few hours? ” The others laugh.
But you press your question. It is only seven o’clock, your spouse has gone to Carlyle to visit relatives, and you are not “otherwise engaged.” Neither are you particularly eager to leave the warm tavern.
“I am at complete leisure,” you respond. “Please, say on.”
The lawyers glance at each other. “Well, why not?” asks one. “As it happens, we are not engaged either. The courts are closed tomorrow, and our wives are enjoying the comfort of each other’s society. I dare say they have no present need of us!” More laughter.
“I think I can speak for my learned colleagues here,” the trust attorney interjects, “when I tell you that there is no topic on which we would rather discourse than our new Constitution. We have exchanged views on this subject before, and we differ on the small points. But I flatter myself that we are in accord on the great ones.”
You are a bit amused at how easy it is to induce lawyers to talk. You draw deep from the warm punch, and sit back, and listen . . .
* * * *
What would those lawyers tell you that evening? What would have been their understanding of the scope of the new federal government and its powers? What would they relate of the role of the states or of the people?
What, in other words, was the actual legal force of our Constitution as lawyers and intelligent lay persons understood it in 1791?
This book answers those questions. The answers were important in 1791, but they are especially important today, when our federal government seems to have wandered so far from its roots. Those answers are deemed relevant to constitutional interpretation by almost everyone, and many people believe them dispositive. That is, many Americans—lawyers and non-lawyers alike—believe the Constitution’s original understanding should govern us today.
To be sure, some people, including the former law instructor who now serves as President of the United States, believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect. Competent Founding-Era scholars largely agree on what most of the original Constitution’s provisions mean. Much of the disagreement among constitutional writers results from unfamiliarity with the historical record or with eighteenth-century law. We will never be absolutely certain of the complete meaning of every constitutional clause.
But we can reconstruct most of the original Constitution’s meaning with clarity and confidence.
The preceding preface was taken from the book “The Original Constitution, What it Actually Said and Meant”.
This incredible book, which unlike most non-fiction books is an absolute page turner.
CLICK ON THE PHOTO BELOW TO PURCHASE