Original understanding and interpretive doctrines
by Jon Roland, May 28, 2001
Those who appeal to "original understanding" or "original intent" in the interpretation of the Constitution, and sometimes in the interpretation of other black-letter law, are often met with objections, usually from those who favor broad interpretations, that either there was no common "original understanding", that different lawgivers understood it differently, or that if there was, there is no way to discover or discern what it was, leaving us to find a broad interpretation of the actual text, perhaps even using modern redefinitions of the terms.
Clearly, for law to be law, it has to have a constant meaning, and the only meaning that can be is the meaning given it by those who wrote and adopted it. To allow loose interpretation is to reduce law from a command to a suggestion, or even just an artistic inspiration. It may be difficult to completely avoid some ambiguity in simply stated rules that are intended to be applied to complex or nuanced situations, but there have to be limits on that.
The important thing is to "get into the heads" of the Founders, to think with their ideas and in their language. It is a critical goal of becoming educated to be able to do that with different kinds of people on a wide variety of subjects. Of course, one can also take advantage of later ideas and language, and do that to re-state their original understanding in more modern terms, provided that we remain faithful to how they would have decided cases.
The Constitution is perhaps best understood as incomplete. It was the consensus that it be kept brief, and not have the length that would be needed to commit to writing all the details of the understanding on which it was ratified. In that sense it is like any law or contract that relies on the good faith of parties or officials to interpret it according to the original understanding that prevailed at the time of adoption. Almost all black letter law has an original understanding component. That is why courts must sometimes turn to legislative history and contemporary legal dictionaries to make decisions.
But if there is disagreement between the proposers of a law or contract, such as the Framers of the Constitution were, and the ratifiers who legally adopt it, it is the understanding of the ratifiers that is legally binding, and must prevail.
The key to original understanding, therefore, lies in the ratification debates that took place from when the Philadelphia Convention proposed it September 17, 1787, to when it was ratified in 1789 and the Bill of Rights were ratified on December 15, 1791. We should not just look at the arguments of those who favored ratification, like the authors of the Federalist Papers (James Madison, Alexander Hamilton, and John Jay), but also those of the opponents to ratification, or those who expressed doubts about the ways the language of the proposed Constitution might be interpreted. Such writings are often lumped under the label "anti-federalist papers". The objectors should not be dismissed as merely the losers in a political contest. They didn't lose the debate. They had the numbers to defeat ratification, and had not the proponents of ratification explained their understanding of the provisions of the Constitution and reassured the objectors as to how the provisions of the Constitution would be interpreted, they would have rejected ratification. That makes such common understanding authoritative for interpretation. Most of the objectors came around to support ratification, although they demanded some amendments, which eventually were made, as the Bill of Rights.
Is also important to understand that, except for the $20 rule in the Seventh Amendment, the Bill of Rights were considered to add no new positive legal content to the basic Constitution. They were only clarifications, restatements of what was and was not in the basic document. Therefore, a key guide to understanding the basic Constitution is to find what its provisions would have to mean for the Bill of Rights not to have added any content.
Another key are the Ninth and Tenth Amendments, which Jefferson considered as expressing the essence of the principles of the Constitution. They should be understood as restatements of each other, in opposite terms. The rights recognized by the Constitution are rights against the actions of government, or "immunities", and people retain all those which are not limited by limited powers delegated to officials by the Constitution. Therefore, the Ninth and Tenth Amendments are complementary, defining a boundary between delegated powers and rights, each of which is the obverse of the other.
By 1789, therefore, the debate was not so much over whether to ratify as over which interpretative doctrine would prevail, and the debate over interpretation divided into two main doctrines, which we may call, and which later came to be called, the "Hamiltonian" and the "Jeffersonian". Ratification was based on a shared understanding that it would be the Jeffersonian doctrine that would govern interpretation. If it had been thought that the Hamiltonian doctrine would have prevailed, a majority would not have ratified.
Despite this consensus in the 1787-89 timeframe, the Hamiltonians became ascendant during the 1794-1800 timeframe, and adopted legislation, such as the Alien and Sedition Acts, which provoked a Jeffersonian reaction, leading to the election of Jefferson in 1800 and prevalence for the Jeffersonians in the 1800-1824 timeframe, and to a lesser degree for most of the 19th century, with some gradual slippage.
The Jeffersonian doctrine got a name: the "Doctrine of [17]98", based on the Kentucky and Virginia Resolutions of 1798 and 1799, and the Virginia Report of 1800, which are the main expositions of it.
What occurred during the 20th century was the emergence and prevalence of the "progressive" doctrine, an outgrowth of the Hamiltonian doctrine, although it is likely that Hamilton and his allies would have rejected it as going far beyond anything they advocated. By modern standards, Hamilton would have been libertarian. If anyone had tried to impose a "New Deal" in the time of Jefferson and Hamilton, it is likely Hamilton would have joined Jefferson in another revolution against it.
The Jeffersonian doctrine is not, therefore, a perpetual rebellion against the Constitution, but against the Hamiltonian and progressive doctrines of interpreting it. The contest is not unlike interpretive doctrinal disputes within religious traditions, such as have resulted in the many Christian sects, over interpretation of the Bible.
My position is that the Jeffersonian doctrine is constitutional, and the Hamiltonian is not, based on this original understanding, although the Jeffersonian might more precisely be called Madisonian, since Madison played the larger role in both framing and interpreting it. On those few points where Jefferson and Madison disagreed, Madison's position should be considered the most authoritative. Jefferson did make many points that Madison did not, however, so it takes the writings of both Jefferson and Madison to cover most of the Constitution, as well as writings of some of their allies. That is a considerable volume of material, too much to incorporate into the written Constitution, but not too much for everyone to read during the course of their general education.
Fortunately, unlike the Bible, for which evidence of original understanding is largely missing, there is no lack of documentation of original understanding for the Constitution. Indeed, there is so much that most people don't want to read all of it. It must also be admitted that on some points important to us today the Founders wrote little, mainly because they took a lot for granted, such as the definitions of words, which has changed since then. They also were not as precise in their use of language as we tend to try to be today, because we have since encountered issues that require nuanced distinctions that they never had to confront, such as those involving "commerce". For that we must often find examples of word usage and generalize narrowly from such usage. Doing that for "commerce" finds that all the examples of usage referred to transfers of ownership and possession of tangible commodities, and never to farming, fishing, mining, manufacturing, or services, which were always considered to be personal and local, and never interstate or international. It did not include "traffic" although commerce involved traffic, because much traffic did not involve commerce.
There is a common-law rule of interpretation that applies today as then: Delegated powers should be interpreted as narrowly as the language permits, and rights as broadly. The presumption should always be in favor of a right against the actions of government, or immunity, and against the power of government.
Reiterating, the following points need to be understood:
First, the Philadelphia Convention did not define "original understanding". The ratification debates did, especially those in the state ratifying conventions. As Madison pointed out, it is the ratifiers who define the understanding of what they ratify, rather than the proposers. That is not to say that the proposers are not an important component, because many of the same people participated in the ratification debates and the ratifying conventions. The Philadelphia Convention merely initiated the final phase of a debate that culminated in ratification of the Constitution, then of the Bill of Rights, which represented the consensus of the ratifying conventions to go ahead and ratify but adopt some clarifying amendments.
Second, as Madison said, the Bill of Rights did not add any positive content to the original Constitution (except for the $20 rule of the 7th). They merely clarified and restated what was already supposed to have been logically implied by the original Constitution. Understanding that point is critical to understanding what the provisions of the base Constitution originally meant. To discover it, just ask what they would have to mean for the Bill of Rights to be redundant.
Third, to get original understanding, one must perceive what was really going on in the ratification debates. It wasn't just a political contest, with winners and losers. It was a process of developing a common original understanding. The proposers offered their proposal, thinking that its language was clear, and then a lot of people responded with objections, based on worst-case constructions of the language, or on how the provisions might work out in practice. The defenders of the proposal replied with clarifications of how the provisions were to be understood, and reassured the objectors that the provisions were not to be understood in a way that would realize the fears of the objectors. For the most part, the defenders succeeded, and a consensus emerged on original understanding, at least among the members of that generation. What remained was concerns for posterity, who might not understand it the same way, and without wanting to weigh down the written document with a lot of legal clarifications, they boiled them down to a few amendments we call the Bill of Rights.
To get "original understanding", therefore, one must read most of the more important writings in the ratification debates, including the Federalist Papers and most of the more important "anti-federalist" papers.
This is not quite sufficient, however, because many of the terms and provisions were not controversial at the time, and were not debated. For example, to get the original understanding of "commerce" to mean transfers of ownership and possession of only tangible commodities, not including services, or "regulation" to not imply criminal powers, one must look for materials outside the ratification debates. Much of that consists of examples of what the terms were applied to, with the meanings obtained by narrowly generalizing on such usage.
Jurists like Bork and Scalia commit the error that Madison warned of, that if rights were enumerated, some would try to limit rights to those enumerated, and neglect others not enumerated. Thus the Ninth and Tenth Amendments seem to be missing from the "textualist" approach of Scalia, when in fact they are, as Jefferson pointed out, the essence of the entire concept of the Constitution. They are also complementary — restatements of the same idea. Every delegated power is the complement of a right or immunity not to have undelegated powers exercised against one. Therefore, unenumerated rights are everything left over after powers are delegated. We have the right to do anything the government does not have a delegated power to forbid us from doing, or to issue and enforce a court order obtained by a party who has been injured or fears being injured.
The rule of construction understood by the Founders was that delegated powers were to be interpreted narrowly, very narrowly, and rights broadly. This comes from the common law tradition, and was for the most part taken for granted. The "necessary and proper" clause was only intended to imply administrative details, such as doing the paperwork, appointing the officials, acquiring and using needed resources, etc. If anyone had anticipated that it would be considered "necessary and proper" to regulate all commerce because interstate commerce were "part of the stream" or "had a substantial impact" on interstate commerce, they would undoubtedly have written the Commerce Clause more carefully to exclude that misconstruction. The only power to regulate anything not interstate commerce is the power to make people go though inspection points where interstate commerce subject to regulation can be separated from other activities not interstate commerce, not subject to regulation. For the Founders, they really would have required regulators to separate things down to the level of the individual commodity item.
A sense of this original understanding can be found in the ways that "sovereign immunity" has been expanded to narrow the right of petition. Several different things are lumped under the label of "sovereign immunity".
The original concept was the immunity of the office of the king, or the king in his persona as king, from the individual. Since the individual can't be separated from his office, for hereditary or life-long offices, that led to the fiction that it was never the king, as king ("the King can do no wrong"), who was legally liable for tort or wrongdoing, but only his ministers, although the king's property, considered as the property of the state, might be seized for claims.
The next concept was the immunity of government from being sued as "the state", rather than as individual officials who might just be "following orders". Clearly, the "sovereign" was properly immune, but the sovereign, after the establishment of a republic, is the people, collectively, not their elected or appointed officials, or public assets. To sustain a claim against the "sovereign", one would have to be able to execute on the property of each and every citizen or resident of the republic, with or without the collection of taxes from them. That would be a formula for some claimant to seize all the property of all of the people under the color of a tort claim.
The next concept was the immunity of judges for liability for their decisions, as long as they were not unduly influenced, as through bribery, intimidation, or close relationship to a party at interest. This arose from the desire not to have every judge sued or prosecuted for every decision someone might not like (remember, originally most criminal prosecutions were private, not done only by public officials), which would impair their independence, but to provide an alternative remedy, appeals courts.
The next concept was the immunity of elected officials for their votes and positions in debate. It began by redefining "treason" to include only warlike acts or complicity therein, because the independence of legislators had often been impaired by threatening or prosecuting them for their votes or debate arguments, and to provide that for any speech or debate in Congress, they were not to be "questioned" in any other place, which means sued or penalized for it.
Finally, there was the concept of immunity for executive officials while they are carrying out their official duties, often under difficult circumstances in which mistakes are likely. Of course, that is a slippery slope to immunity for such officials even when not carrying out official duties and even when their actions are grossly abusive of their authority.
Every such immunity for official acts is a complement to a disablement of the right of petition if no alternative mode of petition is provided. In the case of judicial and legislative acts, there is an alternative petition process: appeal, or election and later legislation. The problem arises when immunity of officials expands to cover every kind of abuse under color of law, not just decisions about which honest persons can disagree.
The concept of sovereign immunity was discussed by the Founders. For example, see Federalist #81 (Hamilton):
"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."
The original understanding of the matter was that the consent was not to be withheld in ordinary cases, but was reserved to prevent abuses that might otherwise occur. Any immunity of officials must be reasonable, or it becomes a constitutionally prohibited "title of nobility".
This leads us to a critical element of original understanding, which was that delegations of powers were not plenary within their spheres, as Marshall argued in McCulloch v. Maryland, but limited to what is reasonable and justified by an compelling public need. That is why a delegated power to "regulate" is limited to reasonable prohibitions of harmful modalities of something, and not the general prohibition of all modalities, and does not imply the power to impose penalties like disablement of life or liberty, but only of property.
This is also why we find such language as "probable cause" in the Fourth Amendment, or "due process" and "just compensation" in the Fifth, or "speedy", "public", "impartial" in the Sixth, or "excessive" or "cruel and unusual" in the Eighth. These are not precise standards. They presume good faith intent to balance rights and seek justice. But they also reserve discretion to judges and jurors to refuse to apply statutory law in ways that would be unjust or excessive exercises of governmental power. Most precedents on this point invoke "due process", but it would be equally valid to invoke the Ninth, Tenth and perhaps 14th Amendments, and argue that the exercise of power exceeded delegated authority, even though the power exercised might seem to fall within the language of the delegation. Unreasonable exercises of power are not just violations of due process, but may actually be exercises of undelegated powers, because there is no delegated power to do things that are unjust or unreasonable, no matter what the authorizing language.