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The Original Constitution: What it Actually Said and Meant - 2nd Edition Paperback – May 17, 2010
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About the Author
Robert G. Natelson is one of America's best-known constitutional scholars. He served as a law professor for 25 years, and has written for some of the world's leading legal publishers. He is now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado.
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Top Customer Reviews
This excellent book may be summarized with three main points:
1) The U.S. Constitution would not have been ratified without many specific assurances by the Federalists about the actual meanings of many of the constitution's clauses. Invariably those concerns were about the constitution being interpreted to give too much power to the central government or deny it to the states and the people. The Federalists responded by promising that the Anti-Federalists' suspicions of too much power to the central government would never happen, using arguments that stressed the established social and legal traditions and the clear meanings of the words used. Nine of thirteen states ratified the Constitution on condition of those Federalist assurances.
2) Those Federalist assurances (i.e., the Federalists' written, promised meanings of the constitution) are well known to us via the writings of the times and the documentations of the Federalists and of the ratification conventions.
3) The American people and the states have surrendered their powers to the Federal Government, mostly during and since the New Deal, essentially in the ways the Anti-Federalists had feared and warned about.
THE ORGANIZATION OF THE BOOK
In the Preface and Chapters 1 and 2, Natelson gives a very enlightening tour of: 1) the background of 1789 society, 2) core political values, and 3) rules of legal construction (Latin maxims).
1 Background of the 1789 Society
This background included people's inherent interest in legal, theological, political, historical, and philosophical topics (e.g., theology and law were the first and second most common books in libraries. Readers were familiar with Edward Gibbon's "The History of the Decline and Fall of the Roman Empire" and the writings of John Locke).
2 Core Political Values
The core political values and principles of both Federalists and Anti-Federalists were:
-- Liberty (in the sense of Lockean natural rights
For example, the constitutions of Pennsylvania and Vermont adopted in the 1770s, each provided for a "council of censors" to be elected every seven years to inquire as to whether the state constitution was being followed, to order impeachments, and to recommend reforms (would that we had 51 such councils of censors today).
-- Effective government
For example, there was wide consensus that the Articles of Confederation gave too little power to the Federal Government so that it had to rely on the states for revenue or for enforcement of federal laws.
-- Republican government
Everyone agreed that to be republican, a government must follow the rule of law and be ultimately responsible to the electorate for its decisions.
-- Decentralized government
To the extent possible, Americans wanted to be governed close to home--if they were to be governed at all.
-- Fiduciary government
Public officials were bound by the standards traditionally imposed on fiduciaries, which were: 1) to honor any limits imposed on their power, 2) to be loyal and avoid conflicts of interest, 3) to be honest, 4) to exercise independent judgment, 5) to not delegate that judgment, 6) to be careful, 7) to treat each beneficiary impartially, 8) to provide regular accountings. Since there were virtually no institutional fiduciaries (such as trust departments of banks), individuals had to serve. Hence, when a public official was labeled as a "guardian" or a "trustee" of the people, most people understood what that implied.
3 Rules of Legal Construction
Natelson says on p. 32 and 33 about rules of legal construction:
"Among the Founders' guidelines for interpreting documents were concise maxims called canons of construction or rules of construction. Like other interpretive guidelines, they assisted the reader toward the `intent of the makers.' Over ninety percent of these maxims were expressed in Latin.
"... The records from the constitutional debates contain many references--direct and oblique--to them. The Founders clearly expected future generations to employ them when interpreting the Constitution.
"The rules of construction were generalizations about how people entered into legal relationships. For example, when people prepared a document, they might insert some words of explanation and they might repeat a point. But they generally did not include large chunks of totally meaningless text. In recognition of this, the courts developed the rule, `Verba a liquid operari debent--debent intellegi ut aliquid operantur,' which meant, `Words should signify something--they should be understood to have force.'"
After this excellent 40-page introduction, Natelson spends the next 170 pages examining each article of the Constitution and clearly explaining what was the intent of the ratifiers and how we know that intent.
TWO CENTRAL POINTS IN THE BOOK
1 Alexander Hamilton Justifies the New Deal
Natelson writes on p. 89 and 90:
"During the New Deal era, the Supreme Court announced that it would no longer prevent Congress for spending for unenumerated purposes. It interpreted the Taxation Clause to permit Congress to spend for any purpose Congress deemed promotive of the "common Defence and general Welfare." The Court justified this position on the authority of Alexander Hamilton. Because this interpretation was of great importance--it enabled Congress to create the modern federal welfare state--and because it was said to reflect the original Constitution, we should give it some attention.
"Alexander Hamilton did not share most of the Founders' view that government should be strictly limited. In fact, he may have been a secret monarchist. Whether or not that was true, he certainly represented the "big government" extreme on the American political spectrum of his day. At the federal convention, he urged his fellow delegates to erect a national government with a president and senate elected for life that could `pass all laws whatsoever.'255 When Hamilton failed to get his way, he went home. Toward the end of the convention he returned, but confessed on the floor his `dislike of the [Constitution's] Scheme of Govt in General,'256 and admitted that `No man's ideas were more remote from the plan than his own were known to be.'257 His unpublished notes, apparently written shortly after the Constitution was signed, reveal him scheming for a new administration that would `triumph altogether over the state governments and reduce them into an entire subordination, dividing the large states into smaller districts.'258
"Although he had little use for the Constitution as written, Hamilton's hopes for a centralizing administration depended on the Constitution being ratified. He fought hard for it, authoring most of The Federalist and leading the ratification fight in New York. During this time, he consistently represented that the federal government would enjoy only limited powers.
"After the new government had been established, however, Hamilton set about changing the system into something more to his liking. In his capacity as Secretary of the Treasury, in 1791 he wrote his Report on Manufactures, in which he originated the theory that the Taxation Clause empowered Congress to spend money on almost anything it wished: `[T]he power to raise money is plenary and indefinite,' he wrote, `and the objects to which it may be appropriated are no less comprehensive than the payment of the public debts, and the providing for the common defence and general welfare.'
"Not surprisingly, therefore, Hamilton's theory won almost no support among his contemporaries. In the following generation, it did win the support of one major book author: Joseph Story promoted it in his Commentaries on the Constitution (1833). Otherwise, however, Hamilton's theory remained dormant until 1936, when the Supreme Court issued dicta (side comments) referring favorably to Hamilton's view.262 Later, the Court adopted those dicta as authoritative, and ever since that time the Court has acquiesced in nearly all federal spending--even spending that most people would deem inconsistent with the `general Welfare'."
2 Federalists Con the Ratifiers
Natelson writes on p. 101:
"During the ratification debates advocates of the Constitution publicly listed examples of activities over which the federal government would have no authority. They did so to inform and reassure Ratifiers and members of the general public about the limited scope of federal power. Among the activities listed as within the exclusive sphere of the states were marriage, divorce, and other aspects of domestic relations; manufacturing (necessarily including labor relations); other business enterprises; agriculture and other land use; land titles and conveyancing; property outside of interstate trade; commerce wholly within state lines; state and local government; the regulation of most crimes and civil suits; social services; training the militia and appointing militia officers; religion; and education."
We see in this list the Federalists' promises that the Federal Government would never contain: a Department of Labor, a Small Business Administration, a Department of Agriculture, a Department of the Interior, a Department of Commerce, a Department of Housing and Urban Development, a Department of Health and Human Services, a Department of Education, and probably over a hundred other agencies.
THE BIG QUESTION
There is an important question that I wish Natelson had at least asked, even if he couldn't answer it. Here it is: Since the ratifiers were smart and legally sophisticated, how could they have simply accepted the many promises presented by the Federalists about so many constitutional interpretation issues that they knew to be critical show-stoppers without requiring that those assurances be somehow referenced by the Constitution? They knew the nature of Government to try to grow, and they knew the nature of We The People to tolerate the slow growth of abuses. And now we are suffering the consequences of their misplaced trust--or whatever their rationale was. I am very disappointed in them.
SOME DEFICIENCIES IN THE BOOK
1 Natelson does not discuss the consequences of the First Amendment not applying to the States or the Executive Branch.
2 He does not explain the Militia Clause in the Second Amendment.
3 I would have appreciated a more orderly presentation of important maxims and their applications.
4 Despite the 691 footnotes (which I really, really prefer to endnotes), there are many missing references to Federalist assurances and colonial backgrounds.
5 The last chapter contains less than one page describing modern regressions from the Constitution. After all, that is where the whole premise of the book is pointed. Twenty or thirty pages would have been appropriate. It's almost like a James Bond movie where 007 doesn't get the girl.
6 There is insufficient discussion of how the requirement of oaths violates the Establishment Clause and the Religious Test Clause.
Natelson discusses the oath of office requirements that appear in Article II, Section 1 (presidential oath) and in Article IV, Section 3 (general offices). The Article IV oath section says:
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
It is interesting that the Constitution requires an oath or affirmation but forbids a religious test. Natelson briefly discusses this contradiction and the rationale for an affirmation, but to get any kind of resolution of this and the ratifiers' view of atheism, read his excellent, though lengthy, 2005 article: "The Original Meaning of the Establishment Clause", William and Mary Bill of Rights Journal, Volume 14, Issue 1, Article 6.
Natelson explains the ratifiers' rationale for oaths to a god on p. 155:
"Under Founding-Era law, the oath-taker was calling God to witness the truth of what he or she said. Only those who believed in God (or gods) were qualified to take a valid oath. Because an atheist did not believe in God, the oath had diminished or no force in his case.
"The reason the oath requirement was a `good government' measure is that it was designed to increase the likelihood that officeholders would be virtuous. It suggested to the mind of one assuming office the probability of divine retribution if he should conduct himself improperly."
Is any oath taker very concerned about such retribution? I don't think there is any record in history of a god ever retributing against someone for violating their oath. Thus all these oaths to God seem to be pipedreams. There are, however, abundant records of people retributing against such violations. Since Natelson and many others make the case that the Constitution is a grant from the people, it would make a lot more sense to swear to We The People, rather than to God. It's even possible that such oaths might take our gods off the hook for retribution duty and place that duty squarely where it belongs--on We The People.
THE BOOK'S BIGGEST DEFICIENCY
"The Original Constitution" was published by the Tenth Amendment Center rather than by a major publisher. It will thus remain outside the establishment book reviewing, marketing, and distribution channels and will not get the recognition that it deserves unless some ground swell propels it into popular attention. It deserves to be a best seller but has little chance of achieving that.
This book is "Made in the U.S.A., Lexington, KY." And I do not mean this as a deficiency, just added consumer information.
It provides a great foundation for understand how and why the Framers and Ratifiers wrote and accepted the Constitution. There is great care taken at the beginning to set the stage as to how they thought and the legal history leading up to the drafting and ratification. I will use the book as a reference for the rest of my life. I hope Part II, The Amendments, is soon to follow. I'm especially interested in the 14th Amendment.
Natelson argues that the Constitution is a legal document, drafted by some of the smartest legal minds of the founding era, and debated during the ratification process by other equally brilliant founders to establish assurances about what was meant and intended by the words of the document. The explanations in the Federalist Papers and the notes taken during the convention all provide part of the basis for interpreting the Constitution. In addition, he argues, that the ideas and thoughts of the of the founding era exemplified by the education of the founders, and the ancient histories as they were known to the Constitution authors helped to shape the meaning of individual clauses in the document. The fact that most of the founders had some familiarity with Latin, Greek and English Common Law established a background upon which the Constitution authors drew. Without this background modern interpreters a libel to make an error. This common background helped to create a succinct document that did not need pages of explanation to convey meaning.
Anyone who wants of understand the meaning and intent of the Constitution need this book in their reference library.
Bio: Rob Natelson is one of America's best-known constitutional scholars. For 23 years, he served as Professor of Law at the University of Montana, where he taught Constitutional Law and became a recognized national expert on the framing and adoption of the United States Constitution. He pioneered the use of source material, such as important Founding-Era law books, overlooked by other writers, and he has been the first to uncover key facts about some of the most significant parts of the Constitution.
Rob has written for some of the most prestigious academic publishers, including Cambridge University Press, the Harvard Journal of Law and Public Policy, and Texas Law Review.
You can read some of his latest works at: [...]