The Constitution (Dark Roast)

Many people today are taught that the Constitution is a “living” document that evolves in accordance with experience and changing times.  If we feel the need to change our Constitution, we are free to amend it. In 1817, James Madison reminded Congress that the Framers had “marked out in the [Constitution] itself a safe and practicable mode of improving it as experience might suggest”—a reference to the amendment process. But that is not what advocates of a so-called living Constitution have in mind. They favor a system in which the federal government, and in particular the federal courts, are at liberty—even in the absence of any amendment—to interpret the Constitution altogether differently from how it was understood by those who drafted it and those who voted to ratify it. Leave aside the alleged problem of determining exactly what the Framers intended by this or that constitutional clause—supporters of the living Constitution must be able to figure out the original intent well enough if they are so sure we need to evolve away from it. If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?

A “living” Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they’ve simply misunderstood: “the Constitution, you see, has merely evolved with the times.” Thus, as in Orwell’s Animal Farm, “no animal shall sleep in a bed” becomes “no animal shall sleep in a bed with sheets,” “no animal shall drink alcohol” becomes “no animal shall drink alcohol to excess,” and “no animal shall kill any other animal” becomes “no animal shall kill any other animal without cause.” That’s why on this issue historian Kevin Gutzman, says that those who would give us a “living” Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us against the encroachments of government power.

So, how do we determine what the original interpretation of the constitution is?

The Federalist And Anti-Federalist Papers

When the Constitution was being debated for ratification two groups formed around two ideas.   The first was Alexander Hamilton’s group that were pushing for the ratification of the Constitution.  To seize on the idea that was popular, a federal government, he named his group “The Federalists”.  Making it sound like they were very pro the form of government that was generally wanted.  And he gave his opposition the distasteful title the anti-federalist’s.  The two groups basically boiled down to the Federalists saying that the Constitution in its present form would be a small central government with limited powers that would be maintained to a small role in the people’s lives.  The anti-federalist’s were of the mind that the Constitution in its present state would be insufficient to keep the central government from growing in size and the protection of the people’s liberties.  Well, with over 200 years of hindsight, I think we can safely say who was right.  It is still important to read the documents to understand what was originally intended by the meanings of the Constitution at the time.

THE FEDERALIST PAPERS

THE ANTI-FEDERALIST PAPERS

 

The State Ratifying Conventions

This is the real meat of the matter when determining the original intent of the Constitution.  The state ratifying conventions were held to determine not only if the state approved the Constitution but, what THEY understood the contract to mean when they approved and entered into it. The following references are by far not the only ones available.

FIRST:

Jonathan Elliot published in 1827 (the documents are available in the following formats – HTML, HTML by Chapter, Simplified HTML, Facsimile PDF, MARC Record, Kindle, EBook PDF, & E-pub).

Volume 1 – The Debates in the Several State Conventions of the Adoption of the Federal Constitution (Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention)

Volume 2 – The Debates in the Several State Conventions of the Adoption of the Federal Constitution (Mass., Conn., NH, NY, Penn,Maryland)

Volume 3 – The Debates in the Several State Conventions of the Adoption of the Federal Constitution (Virginia)

Volume 4 – The Debates in the Several State Conventions of the Adoption of the Federal Constitution (North and South Carolina, Resolutions, Tariffs, Banks, Debt)

Volume 5 – The Debates on the Adoption of the Federal Constitution in the Convention held at Philadelphia in 1787 (Debates in Congress, Madison’s Notes, Misc. Letters)

 

SECOND:

This landmark work in historical and legal scholarship draws upon thousands of sources to trace the Constitution’s progress through each of the thirteen states’ conventions. The digital edition allows users to search the complete contents by date, title, author, recipient, or state affiliation and preserves the copious annotations of the print edition.Edited by John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan is HERE

THIRD:

Max Farrand published in 1911 (the documents are available in the following formats – HTML, HTML by Chapter, Simplified HTML, Facsimile PDF, Kindle, EBook PDF, & E-pub).

The Records of the Federal Convention of 1787 – Volume 1

The Records of the Federal Convention of 1787 – Volume 2

The Records of the Federal Convention of 1787 – Volume 3

 

The Sovereign States

THE SOVEREIGN STATES presents a clear and lucid exposition, accessible to the lay reader, of the founding of our present Constitutional Republic, the historic events that have shaped it, and the challenges we face today to restore constitutional government and preserve liberty under law for ourselves and our posterity.  It was written during the Southern resistance to the Supreme Court decree of 1954 Brown v. Board of Education which was a very racially charged period of time so, the reader must be prepared for some of the tone and language when reading this book.  The book, however, gives an excellent review of the relation between the states and the federal government and is an excellently written and researched piece of literature on this topic.  You can either read the book online HERE or you may download the book in several formats HERE.  We have also taken the time to compile the book into a searchable pdf that you may download HERE.

 

Conceived In Liberty

Conceived in Liberty is a 1,616 page volume that offers a complete history of the Colonial period of American history, a period lost to students today, who are led to believe American history begins with the US Constitution. This single volume covers the discovery of the Americas and the colonies in the 17th century, the period of “salutary neglect” in the first half of the 18th century, the advance to revolution, from 1760-1775 and the political, military, and ideological history of the revolution and after.  You can download it in pdf version HERE or you can download and listen to it in Mp3 format HERE.

 

Additional Resources:

Federalism:  The Founders Design
Hardcover: 223 pages
Publisher: University of Oklahoma Press; 1st edition (July 1987)
Language: English
ISBN-10: 0806120592
ISBN-13: 978-0806120591

States’ Rights and the Union:  Imperium in Imperio, 1776-1876

Paperback: 304 pages
Publisher: University Press Of Kansas; Edition Unstated edition (November 1, 2002)
Language: English
ISBN-10: 0700612270
ISBN-13: 978-0700612277

The Creation of the American Republic, 1776-1787

Paperback: 675 pages
Publisher: University of North Carolina Press (March 18, 1998)
Language: English
ISBN-10: 0807847232
ISBN-13: 978-0807847237

The American Republic:  Constitution, Tendencies and Destiny

(FREE ON AMAZON KINDLE)
Print Length: 174 pages
Page Numbers Source ISBN: B004HW83N8

A Brief Enquiry Into The True Nature And Character of Our Federal Government

Print Length: 158 pages
Publisher: Constitution Society; 1868 edition (March 7, 2009)
Sold by: Amazon Digital Services, Inc.
Language: English
ASIN: B001UV3F3M