It is a pleasure to have you visit www.originalmeaning.com. This website is dedicated to promoting the original meaning of the United States Constitution.
The first question that many of you may have is: How does one determine the Constitution's original meaning, and why does it matter? Good question!
At the outset, however, it is important to acknowledge a simple, yet crucial fact: Prior to the formation of the United States Government (i.e. the "federal" government), there were thirteen separate, sovereign states, which were, in essence, separate countries with their own respective governments and laws.
When most Americans think about our country's founding they envision genteel grandfather figures, who, acting in unison, developed the structure of our federal government with little to no disagreement.
These gentlemen certainly developed our tripartite system of government, but it was hardly an easy task or a harmonious process. There were many prominent men of this time period who vigorously opposed the formation of a strong federal government.
The predecessor to the United State Constitution were the Articles of Confederation ("Articles"). Adopted by the thirteen colonies in the 1781, this was the first document which made reference to a "United States of America."
While there are similarities between the powers delegated by the States to the federal government in the Articles, and to those contained in our current Constitution, there was, as Justice Joseph Story notes in Commentaries on the United States Constitution, " . . . [a]n utter want of all coercive authority to carry into effect its own [the Articles'] constitutional measures." Story also concluded that "[i]n truth, congress [under the Articles] possessed only the power of recommendation."
If you are visiting this website you are, no doubt, familiar with the arguments made on behalf and against the ratification of the United States Constitution. However, if you wish to refresh your memory please visit the "LINKS" page of this website which will direct you to both the "Federalist Papers" and the "Anti-Federalist Papers."
Some visitors to this web site may be true blue Federalists, while others are staunch Anti-Federalists. I think that both groups possessed great wisdom and insight. Each group was concerned with balancing the promotion of "the general Welfare" of all citizens (in all states) with the need to protect and ensure that the newly erected federal government would indeed "secure the Blessings of Liberty" by respecting the inherent sovereignty of the several States. These gentlemen cherished, in a way their descendents cannot fathom, the freedoms and liberties they had fought so hard to obtain. As such, each group was deeply concerned about the structure and breadth of this new creation, this "federal" government.
The Federalists keenly understood the need for a strong federal government to address crucial issues that simply could not be effectively dealt with at the state level (e.g. war, commerce among the states).
The Anti-Federalists, on the other hand, understood human nature (i.e. the total depravity of man), that power corrupts, and that no matter how much the Constitution separated the "powers" between the branches of government, or attempted to place "checks and balances" into its structure, there was a significant likelihood that the States would ultimately lose their sovereignty in the process.
I consider myself to be an "orthodox" Federalist. I believe that a strong federal government is not only necessary, but essential. I seriously question whether the United States could have become a world power without a strong federal government. The federal government's abuse of its delegated, enumerated powers, however, has undermined the authority, and thus respect for, the United States Constitution.
There are many people who believe that all is lost, and that our Constitution is beyond repair. While I acknowledge that the current state of constitutional law, and our culture for that matter, has been on the decline for some time, I am not convinced that an "incremental" return to the original meaning of the Constitution is impossible.
The battle ground for the restoration of our Republic is the United States Supreme Court. While the other federal and state courts are extremely important, they all take their cue from the Supreme Court, and this is where the relevance of "originalism," and hence this web site, becomes apparent.
Originalism is a method, in truth the only legitimate method, of constitutional interpretation. When presented with a constitutional issue, an originalist will examine the text in question to determine its original meaning (i.e. How was the text commonly understood by the men who wrote and ratified same?).
How does anyone determine the meaning of constitutional text? There are several sources which shed light on the original meaning of the Constitution's text (e.g. The Federalist Papers, Elliot's Debates, Farrand's Records of the Federal Convention, etc.).
It should be noted, however, that these documents/writings are not law. They are guides to understanding the text of the Constitution. For example, the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech . . . ." But what does this text mean? What types of communication are "protected" by the First Amendment? This is where writings in existence at the time the Constitution was drafted and ratified can be used by a judge to assist him in determining the meaning of the text in question.
The text of the Constitution means exactly what it meant at the time it was ratified by the States (except to the extent that same has been "legitimately" amended in the manner prescribed therein).
But why? Why are we bound by what people thought or understood over 200 years ago? The simple answer is that we are not. If the people of the United States are not content with a particular provision of the Constitution they are free to amend it, so long as proper constitutional procedures are followed.
However, absent a constitutional amendment, the United States Government, and specifically the Supreme Court, is bound by the "original meaning" of the Constitution at the time it was ratified. It is easy to forget that the federal government is one of limited, enumerated powers, and that it is only authorized to exercise the powers delegated to it by the States.
What does the word "delegate" mean? The Oxford English Dictionary defines "delegate" as "[t]o send or commission (a person) [or in this case a government] as a deputy or representative, with power to transact business for another, to depute or appoint to act."
The States delegated certain powers to the federal government, not vice versa. As such, in theory, the federal government exists at the pleasure of the States and "We the People." The sovereignty of the States is recognized and protected by the structure of the Constitution.
The Constitution both explicitly and implicitly recognizes the sovereignty of the States. However, the Supreme Court's jurisprudence has slowly and steadily usurped powers belonging to the States which were never delegated the federal government.
Supreme Court decisions which illegitimately alter the balance of power between the States and the federal government amount to a breach of a fiduciary duty. The States conditionally delegated certain, enumerated powers to the federal government. The key "condition" to this delegation was that the federal government would only exercise, or attempt to exercise, powers that were expressly or implicitly entrusted to it via the Constitution. The ratification debates make this abundantly clear.
The federal government breached its fiduciary duty to the States by usurping and exercising many of the powers possessed by the States at the time the Constitution was ratified (e.g. issues regarding individual liberties). The federal government's main vehicle for the countermajoritarian usurpation of state powers has been the United States Supreme Court. The servant has indeed become more powerful than its masters!
Recent decisions of the Supreme Court, however, offer hope. While I certainly have problems with Justice Anthony Kennedy's overall jurisprudence, his majority opinion in Alden v. Maine was nothing short of brilliant. Perhaps, he hired a "federalist" clerk. Here is just a taste of his truly great opinion,
"Although the Constitution establishes a National Government with broad, and often plenary authority over matters within its recognized competence, the founding document 'specifically recognizes the States as sovereign entities . . . The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status. The States 'form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.' The Federalist No. 39 . . . Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation's rejection of the 'concept of a central government that would act upon and through the States' in favor of 'a system in which the State and Federal Governments would exercise concurrent authority over the people--who were, in Hamilton's words, the only proper objects of government.' . . . THE STATES THUS RETAIN 'A RESIDUARY AND INVIOLABLE SOVEREIGNTY." The Federalist No. 39. THEY ARE NOT RELEGATED TO THE ROLE OF MERE PROVINCES OR POLITICAL CORPORATIONS, BUT RETAIN THE DIGNITY, THOUGH NOT THE FULL AUTHORITY OF SOVEREIGNTY." (emphasis added)
Justice Kennedy continues,
"In an apparent attempt to disparage a conclusion with which it disagrees, the dissent attributes our reasoning to natural law. We seek to discover, however, only what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system. WE APPEAL TO NO HIGHER AUTHORITY THAN THE CHARTER WHICH THEY WROTE AND ADOPTED." Theirs was a unique insight that freedom is enhanced by the creation of two governments, not one. We need not attach a label to our dissenting colleagues' insistence that the constitutional structure adopted by the founders must yield to the politics of the moment. Although the Constitution begins with the principle that sovereignty rests with the people, it does not follow that the National Government becomes the ultimate, preferred mechanism for expressing the people's will. The States exist as a refutation of that concept. In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. The Framers of the Constitution did not share our dissenting colleagues belief that the Congress may circumvent the federal design by regulating the States directly when it pleases to do so . . . ."
Kudos to you, Justice Kennedy. Your majority opinion in Alden warrants your picture being posted on this website.
Justice Anthony McLeod Kennedy
And herein lies the chance, the opportunity, the moment of truth. During a recent term, the United States Supreme Court, in the Alden case, and the companion cases of College Savings Bank and Florida Prepaid (hereinafter referred to collectively as the "States' Rights Cases of 1999"), breathed new life and vigor into the "body" of federalism. These cases may be viewed years from now as landmark decisions which helped restore the original framework of our constitutional republic, or simply as a missed opportunity.
The doctrine of "federalism" concerns the balance of power between the States and the federal government. Judge Bork has written that federalism is the recognition of "the states as the sole regulators of areas left beyond federal power."
The best definition of federalism, however, can be found in the Tenth Amendment, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
There are currently two members of the Court who are bona fide originalists: Justice Antonin Scalia and Justice Clarence Thomas. Chief Justice William Rehnquist is an "honorary" originalist, but is not, in my opinion, as committed as Scalia and Thomas in adhering to the original meaning of the Constitution.
Justices Kennedy and O'Conner have, at times, originalist leanings, but they certainly can not be counted on, and their decisions may depend more on their clerks' jurisprudence than their own.
Finally, with respect to the remaining members of the Court, they are, with all due respect, merely politicians in robes. In my opinion, Justices Breyer, Ginsburg, Souter, and Stevens do not interpret the law, they create it.
These justices are the "supreme" legislators of the United States. Unelected and unaccountable to the people, these justices ignore the original meaning of the Constitution, and subscribe to the belief that the Constitution "lives," growing over time to conform to present day mores and contemporary attitudes.
And just what objective criteria do these justices use to make a determination of what our collective society believes or needs? Nothing. There is no reference point that these justices use in their decision making process, other than their own subjective ideas of "justice" and "fundamental fairness." In other words, the law means what these justices think it "ought" to, and not what it does in fact mean.
The difference between originalism and every other constitutional school of thought is the recognition of authority. The originalist believes that for the Constitution to mean anything it must have a defined meaning. The originalist recognizes that the federal government's authority is derivative, not original. As such, the originalist believes that a judge must "interpret" the federal government's enumerated powers in light of how the States, the delegator of said enumerated powers, understood them.
Finally, the originalist understands that for the Constitution to be amended, it must be amended in the manner prescribed by the Constitution. The Constitution can not be amended by judicial fiat. The federal government may have the "power" to alter the Constitution without the States' consent, but it does not have the authority to do so.
I appreciate your taking the time out to visit this website. I developed ORIGINALMEANING.COM because I love the United States, and the liberties offered by our constitutional republic. I earnestly believe that these liberties are best protected when judges adhere to the original meaning of the United States Constitution.
Stephen Louis A. Dillard - Web Master
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