a tavern in 1791: preface to the original constitution

7/28/2019 A Tavern in 1791: Preface to The Original Constitution

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PREFACE

A TAVERNIN 1791. . . .

It is Thursday, December 22, 1791. You live in Philadelphia, currentlyserving as the temporary capital of the newly-created United States of

America. It has been only fifteen years since Independence was declared,and less than three years since the federal government began functioningunder the United States Constitution.

For a long time, it had been touch-and-go as to whether the Constitutionwould be ratified at all. Two states initially refused to agree, and of theremainder five had approved the document only after the Constitutionssupporters and moderate opponents had cut a political deal calling for a

Bill of Rights. As soon as the new Congress met, two of the most importantstates, Virginia and New York, petitioned for a convention for proposingamendments to the Constitution. Only after Congress had approved theBill of Rights did Virginia and New York abandon their petitions and onlythen did the last two hold-outs, North Carolina and Rhode Island, join theunion. The fourteenth state, Vermont, came in at the beginning of 1791.

Earlier on this day, you learned that the Bill of Rights finally had beenratified on December 15. So now, you reflect, the union is reasonablysecure, evening is approaching, and your work day is doneand you are

on a Philadelphia street corner with nothing particular to do. The weatheris chilly and blustery, but there is a cure for that: A warm punch in a cozytavern.

You enter the tavern and look around for a seat. The place is nearly full. Butthere is bench space at a long wooden table at one side of the room. Sittingaround the table are men you recognize eminently respectable mensome of Philadelphias leading judges and lawyers. They are deep in debateabout an abstruse point of real property law. Not being a lawyer yourself,

you do not think of that sort of discussion as the key to a good time. But

there are no other seats.

You slip into the empty chair and order your punch while the talkswirls around your head. Eventually, you decide to turn the conversationelsewhere. You give a little cough.


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The lawyers had barely noticed you, but now they turn their heads andbreak off the debate. I regret that I feel unqualified to comment on yoursubject, you say. But, gentlemen, you know I am not a lawyer. May Isuggest another topic?

They seem interested. The prior discussion had been wearing thin anyway.

You no doubt have observed, you continue, that ten new constitutionalamendments were proclaimed last week.

Yes, responds one of your listeners. (You know him to be a distinguishedjudge.) They should work some change upon the system.

That is exactly what I wished to pursue, you add. W hat is that system?And what change does the Bill of Rights effect upon it?

The lawyers look at each other. One of themhe is particularly knownas an expert in wills and fiduciary trustssmiles. Well, my friend, that isan expansive inquiry whose response might consume some time. Are youotherwise engaged for the next few hours? The others laugh.

But you press your question. It is only seven oclock, your spouse has goneto Carlyle to visit relatives, and you are nototherwise engaged. Neither are

you particularly eager to leave the warm tavern.

I am at complete leisure, you respond. Please, say on.

The lawyers glance at each other. Well, why not? asks one. As it happens,we are not engaged either. The courts are closed tomorrow, and our wivesare enjoying the comfort of each others society. I dare say they have nopresent need of us! More laughter.

I think I can speak for my learned colleagues here, the trust attorneyinterjects, when I tell you that there is no topic on which we would ratherdiscourse than our new Constitution. We have exchanged views on thissubject before, and we differ on the small points. But I flatter myself that

we are in accord on the great ones.

You are a bit amused at how easy it is to induce lawyers to talk. You drawdeep from the warm punch, and sit back, and listen . . .

* * * *


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What would those lawyers tell you that evening? What would have beentheir understanding of the scope of the new federal government and itspowers? What would they relate of the role of the states or of the people?

What, in other words, was the actual legal force of our Constitution as

lawyers and intelligent lay persons understood it in 1791?

This book answers those questions. The answers were important in 1791,but they are especially important today, when our federal governmentseems to have wandered so far from its roots. Those answers are deemedrelevant to constitutional interpretation by almost everyone, and manypeople believe them dispositive. That is, many Americanslawyers andnon-lawyers alikebelieve the Constitutions original understandingshould govern us today.

To be sure, some people, including the former law instructor who now servesas President of the United States, believe that it is impossible to reconstructthe Constitutions original meaning.1 As this book demonstrates, that viewis substantially incorrect. Competent Founding-Era scholars largely agreeon what most of the original Constitutions provisions mean. Much ofthe disagreement among constitutional writers results from unfamiliarity

with the historical record or with eighteenth-century law. We will never beabsolutely certain of the complete meaning of every constitutional clause.But we can reconstruct most of the original Constitutions meaning withclarity and confidence.

THE STRUCTUREAND APPROACHOFTHIS BOOK

Our lawyer friends in the Philadelphia tavern probably would not explainthe Constitution clause-by-clause, since it would be more efficient toapproach the subject by general topic. That is the approach in this book.

We begin by surveying some history and values shared by the FoundingGenerationmaterial you would not have had to ask about in 1791,

but might not know today. Then the chapters proceed theme by theme.For example, one chapter examines the role of the states in the federal

system. Another treats all of Congress enumerated (listed) powers, nomatter where in the Constitution they appear. Still another discusses theexecutive branch. Because this book speaks of the Constitution as it stoodin late 1791, it generally uses the past tense. This keeps the work internally

1 Barack Obama, The Audacity of Hope 132 (2006) (It is unrealistic to believe that

a judge, two hundred years later, can somehow discern the original intent of the

Founders or ratifiers.).


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consistent, and reminds you that the content does not necessarily reflectconstitutional law as the courts apply it today.

FOOTNOTESAND BIBLIOGRAPHY

Most of the conclusions in this book are based on the densely-referencedstudies listed in the chapter-by-chapter bibliography. Others are basedon new research. In general, I have limited footnotes to four functions:providing cross-references to other parts of the book; providing referencesto the part of the Constitution then under discussion; citing materialnot found in the studies listed in the bibliography; and, in a few cases,commenting on modern constitutional issues related to the text.

FRAMERS, RATIFIERS, FEDERALISTS, ANTI-FEDERALISTS, AND FOUNDERSTHE

WORDS DEFINED

This book refers frequently to the views, goals, methods, and comments ofthe people who wrote, debated, and adopted the Constitution and the Billof Rights. The Framers were the fifty-five men who drafted the Constitutionat the federal convention in Philadelphia, between May 25 and September17, 1787. The Ratifiers were the 1,648 delegates at the thirteen stateratifying conventions meeting from late 1787 through May 29, 1790.

The Federalists were participants in the public ratification debates whoargued for adopting the Constitution. History has labeled (unfairly) theiropponents as Anti-Federalists. The Founders comprised all who playedsignificant roles in the constitutional process, whether they were Framers,Ratifiers, Federalists, or Anti-Federalists. Although the Framers andRatifiers were all male, the Founders were not. Women such as Mercy Otis

Warren, an important Anti-Federalist writer (and later a leading historian),helped to shape public opinion about the Constitution.

Also among the Founders were the members of the Confederation Congress(1781-89) and its leading officers, as well as the members of the initialsession of the First Federal Congress (1789). That session drafted theBill of Rights and debated and resolved several constitutional issues whileNorth Carolina and Rhode Island were still weighing whether to join theunion, and while Virginia and New York were petitioning for a conventionfor proposing amendments.

Many Founders fit into more than one category. For example, James Madisonand Alexander Hamilton were Framers, Ratifiers, leading Federalists. John

Jay, who served the Confederation as Secretary for Foreign Affairs, did


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not attend the constitutional convention, so he was not a Framer. But hedid serve as a delegate to the New York State ratifying convention, and he

wrote some of the essays in The Federalist(or, as they are commonly called,The Federalist Papers) urging that the Constitution be approved. He was

therefore a Ratifier and a Federalist as well as a Founder. Elbridge Gerry ofMassachusetts actively participated in the federal convention, but publiclyopposed the final result, so he was a Framer and an Anti-Federalist. He wasnot a Ratifier, but did go on to play a prominent role in the First FederalCongress. Like Gerry, George Mason was a Framer and an Anti-Federalist.He also was a delegate at the Virginia ratifying convention, and therefore aRatifier.

In this book, the phrase Founding Generation means the entire involvedpopulaceFramers, Ratifiers, Federalists, Anti-Federalists, Founders, and

anyone else participating formally or informally in the great national debateover ratification.

EVIDENCEFORTHE ORIGINAL CONSTITUTION

Lawyers, judges, and scholars seeking the Constitutions original legaleffect use certain standard sources. These sources include the text ofthe Constitution itself, the federal convention notes prepared by JamesMadison and other delegates, debates in the state ratifying conventions, TheFederalist, and a few other documents, such as the Articles of Confederationand the early state constitutions.

The standard sources are of great value, but they are not sufficient. Forexample, the royal commissions and instructions to colonial governors

helped shape the Founding-Era understanding of the executive power,

but those sources are rarely referenced today. The Federalist exercised an

important influence in the ratification debates, but lesser-known writings

exercised more.

Another valuable source often overlooked is the law of the Founding-Era.Most of the leading Founders were lawyers and the general public was far

more knowledgeable about law than it is today. The Constitution was, ofcourse, a legal document written in a particular legal environment. So youneed to know something of 1787 law to fully understand the meaning ofa legal document written in 1787. Sometimes a few pages from BaconsAbridgmentor JacobsNew Law-Dictionary can resolve decades of academicdispute.


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For these reasons, lawyers, judges, and scholars have been paying more andmore attention to evidence outside the standard sources. Herbert StoringsThe Complete Anti-Federalist was published in 1981. It is a collectionof long-neglected arguments against the Constitution. The Wisconsin

Historical Society has been issuing its multi-volumeDocumentary History ofthe Ratification of the Constitution. The National Historical Publications andRecords Commission and George Washington University have sponsoredthe Documentary History of the First Federal Congress. Dedicated people,such as Texas activist Jon Roland (www.constitution.org) have postedon the Internet hundreds of documents previously accessible only in topacademic libraries. The Gale Companys Eighteenth Century CollectionsOnline database now makes available much of the Founders literary world,enabling you to find dozens, sometimes thousands, of word usages in a few

seconds.In writing this book, I have had the advantage of all those sources.

a tavern in 1791: preface to the original constitution

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