Do The People, The States, Or The Courts Interpret The Constitution? Or All Of The Above At Different Levels?
This is an email exchange I had with the Communications Director over at the Tenth Amendment Center from July 7th through July 12th 2011. I am posting it because it relates to the book list I posted yesterday and the one I plan on posting tomorrow. Michael Maharrey is a great guy. I have spoken to him via twitter since this exchange. I recommend that you follow him and the whole Tenth Amendment Team on twitter.
Henry Moore: Mr. Maharrey,
I have a question. It is not the one in the subject, per se, although that question may very well also be answered in your response. I ask, Are you aware of any quotes by any one of the Founding Fathers that say something to the effect of “The Constitution was written so that the common man may read and understand it.” It seems like I have read it before and that it was attributed to Jefferson. I could be mistaken. If the quote exists, it would be very helpful to me in a project I am working on. In fact, it is the very last thing needed to complete the project. I could do without it, but if it exists, I would feel inadequate for not having used it.
If the quote exists, and was written or uttered by one of our Founders, then I can definitely see how it could be used to justify the claim that the People may interpret the Constitution, say, in a debate about original intent. The idea that the people have this right/authority is a very radical one in this day and age, and seems to be related to the idea of Jury Nullification, where a group of free citizens may decide both the facts and the Law, a given in English Common Law, the quotes of various Founding Fathers, and something that still occasionally occurs.
And of course, there are the Ninth and Tenth Amendments, which together, justify the interpretation of the Constitution by both the people and the States. This of course, relates to a higher level of Nullification than that of the Jury.
But, the only justification I can find for a court interpreting the Constitution is the case of Marbury v. Madison, where the Supreme Court essentially granted itself the power to do so. From what I can tell from my Constitution, their authority in deciding whether a Law passed by a Legislature is Constitutional or not is vague or nonexistent.
Can you help me out?
Thank You for Your Time,
Michael Maharrey: Hey Hank,
I’m not aware of any such quote. That doesn’t mean it doesn’t exist…just that I’m not aware of it.
I don’t buy the idea that the Constitution was meant to be “interpreted” by the people. It is a very precise legal document, full of legal terms and concepts.
My take is that the Constitution means what it means. It’s not an issue of “interpretation” in most cases. We have the ability to understand exactly what the framers meant by each clause, with few exceptions.
We can examine the ratifying conventions, the words of the framers, The Federalist and The Anti-Federalist, along with legal terminology of the day and understand exactly what the Constitution means. For instance, “necessary and proper” had a very precise legal definition. By understanding that definition, we understand the ancillary powers that clause conveys. The same with the word “commerce”. The framers understood it as a specific set of activities. The idea conveyed by the word “commerce” today is much different and broader than the understanding of the term in the 18th century. We can’t “interpret” the meaning of the commerce clause using todays definition of commerce, unless we accept a vastly broader grant of power than was intended. (which is indeed what courts have done. Commerce meant basically trade – exchanges of goods – and conveyed no power to regulate manufacturing or agriculture.)
The best reference on this subject I’ve seen is The Original Constitution by Rob Natelson. You can pick it up on Amazon.com
Hope that helps.
National Communications Director
Tenth Amendment Center
Henry Moore: Mr. Maharrey,
Sorry, did not mean to put a populist/ochlocratic (or rather, I did not mean “people” as a collective, but rather as a plurality of individuals, an important, yet subtle distinction) spin on it. What I meant was more “Did the founders intend for the average man (specifically of that era) to be able to read and understand the Constitution as good or nearly as well as a legal scholar of the day?” than “Are the people just as qualified, today, to enforce their interpretation of the Constitution as the Courts, as accepted today, or the states, as accepted by Nullifiers in the past and even in the present, or as the legislators that pass laws that they claim meet Constitutional requirements (which seems to be less and less the case anymore)?” Maybe I am wrong, but it seems that in days gone by, any person was more or less qualified to read and understand it as almost anyone else, and only when a question arose would they need to consult other documents, for original intent, but never a lawyer. Today, it seems that even a well educated or well informed person is scoffed at for even daring to question a judge’s, or an elected official’s, or an attorney’s, interpretation of the document, even when the latter can easily be proven wrong.
It was Madison that said to always distrust those in authority, even if only a little.
It was Jefferson that said that people should educate themselves on the founding documents and traditions of the Republic.
Sorry I don’t have the exact quotes.
If only these two pieces of advice were remembered, we would not have so many problems with the way certain people wrongly interpret the document.
Thanks again, and God Bless you for the work you are doing,
Michael Maharrey: Ah, I see what your saying.
Honestly, I really don’t know what the framers would have said on the issue of “understandability” by the average citizen. The culture was so different then. Far fewer people formally educated.
But I think what you are getting at is true. Maybe a better way to approach it is through the idea of sovereignty. The bottom line is that “we the people” stand as sovereign. That’s a given in our system. We are governed by our own consent, and at any point, an individual can withdraw that consent. We grant specific powers to our state government, others to the federal government, and others still to our local governments. As Locke explained, we accept the notion of government because we find our life, liberty and property better protected when we agree on and can enforce the rules as a society. We are at our core social creatures. But when any branch of that government oversteps and begins to harm our life, liberty and property, we have a natural right to stop it.
I believe in a process. If the feds overstep, go to the state and let it use its power and authority to step in. Local government should check states. But ultimately, you are in charge and have a natural right to judge for yourself. That’s where I think you find the roots of jury nullification.
If you have never read them, read Locke’s Two Treatises of Government. They are a bit tedious, but will really help you conceptualize the idea of sovereignty, the role of government and our power as individuals. He had a profound impact on the thinking of the framers.
Henry Moore: Glad you see where I am coming from. I would eventually like to read the works of Locke and other Classic Liberal theorists. Thus far, the only entire work even remotely close to that genre I have read is Bastiat’s The Law. Not tedious at all. Now, that copy of Adam Smith’s The Wealth of Nations I have: not sure if I’ll ever be able to dive into it.
Thank you for your help.
Michael Maharrey: The Law is next on my list, actually.
I slogged through The Wealth of Nations about 2 years ago. It took me about 4 months – and I have a pretty strong econ background.
Locke’s First Treatise is a little more obtuse than the Second. It gets a good bit into theology, but it’s important to grasp that. It also gives some great insight into the conventional wisdom of the day. Once you’ve got that, the Second Treatise is pretty smooth sailing.
Henry Moore: Was that before or after he dabbled with Unitarianism or Deism or whatever it was? Just curious. But, I agree, theology is a good thing. Going through The Westminster Shorter Catechism, slowly, right now. Very interesting stuff. Tedious at times.
Michael Maharrey: It certainly wasn’t written from a deist standpoint. Nor was A Letter Concerning Toleration. Solid Christian theology, in my view.
Henry Moore: I was in Barnes and Nobles today, happened to look in the philosophy section, saw the Treatises, remembered that you recommended them, and bought them. One book with both works, and including the Letter Concerning Toleration that you also referred to, for $16.20. I will see if I ever get around to reading it. My list of books to read is a long one and I am a relatively slow reader. Triage might allow me to give this one priority!