Perspectives Sought on Constitutional Originalism

1. 84

   GA Andersonposted 6 years ago

   Thanks to MyEsoteric's, (who I hope will pop in on this, and, yes, I know it should be "Whom"),  mention of Original Meanings by Jack N. Rakove, I grabbed a copy and am now stuck trying to resolve a conflict with a Madison thought. It is a real problem for me because who the hell am I to disagree with such a reasoned intellect as James Madison! (and a Pulitzer Prize winning author). So I am looking for some perspectives to consider, or argue with, to help me resolve my own thinking.
   
   Now, this request doesn't require even an interest in Constitutional study, just a perspective of what I see as circular logic.
   
   Here's the deal. The question is how to establish the "original meaning" of the Constitution's text. As in what did the wording mean in the context of the times when it was written and ratified.
   
   My reasoning is that to apply the understanding of the authors' of those times is the exact right way to look at it. But... Rakove presents, (and has a Madison quote to support it), that it is the understanding of the State legislators that ratified the Constitution that really should be the authority of the "original meaning."
   
   As in, it is not what the authors meant, but what the ratifiers thought the authors meant that is the real original meaning.
   
   Madison's quote supporting this is;
   
   
   I certainly agree with the part about the Constitution being a "dead letter" until it was ratified, but I am struggling to see how the authors' meanings could be different from the ratifier's understanding of the meanings.
   
   The Federalist Papers were the authors', (at least three of them), explanation of the meanings to the public, in the effort to persuade them to support ratification. So, my thinking is that the authors intended a specific understanding of their words. They promoted these understandings to the public, (and as such, the ratifiers). Which to me means the legislators of the States' Conventions were discussing the document with the same understandings of its meanings as the authors of the document.
   
   That seems to be circular to me. If the original meanings are accepted as the authors' original meanings by the people accepting the document - then how is their understanding to be considered the true original meaning - separate from the authors' original meanings.
   
   Damn, I am even confusing myself now, but maybe you can see what I am getting at.
   
   What say you? Could the understanding of this new effort of governance be different in the minds of the ratifiers - from the authors - when it was the explanations of the authors that informed the ratifiers?
   
   ps. I know, boring... but come on take a shot, even if you couldn't give a hoot about "original meanings" and only consider the last "What say you?" part.
   
   GA

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   1. 61

      dianetrotterposted 6 years agoin reply to this

      I would think they  need footnotes, alphabet soup, etc., to show the flow of the meaning from document to another.
      
      I ask a lot of questions because I don't want to assume someone means the same thing I am thinking.  I can't imagine 10 people reading the same thing and making the same assumptions.

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      1. 84

         GA Andersonposted 6 years agoin reply to this

         Hi Diane, I can understand your reference to 10 people garbling a single message, sort of like the kid's game of "telephone poles" where the first kid gets the message, then repeats it in the ear he next kid - on down the line until the 10th kid repeats the message out loud, and it is almost never even close to the original message.
         
         But, I don't think that would be the case here. The wording and its meaning, (The "Message"), were openly debated in the State conventions, so there was plenty of opportunity to correct garbled impressions.
         
         Also, relative to footnotes, the text of the Constitution is fairly concise, without a lot of referencing and legalese to require extensive annotating.
         
         I am still of the mind that the convention delegates took the authors' intended meanings as their own, and ratified the document with those understandings.
         
         GA

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2. 77

   Kathryn L Hillposted 6 years ago

   I would say James Madison meant that The People's understanding of the original intent surpasses the authors' (founders') intent! If they (The People) agreed to something, they understood it as useful to their own purpose or purposes. !!!!
   
   Now we have to figure out what did THE PROPLE actually agree to and why!!!! What was their true need of the time and does it relate to the need of today. Don't forget that human nature is pretty constant and true needs change little throughout time.
   
   I also think Madison was saying that what they came up with (in the Constitution) was pretty much guaranteed to work in practice, not just in theory.

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   1. 77

      Kathryn L Hillposted 6 years agoin reply to this

      Lol: THE PEOPLE

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   2. 84

      GA Andersonposted 6 years agoin reply to this

      Hi Kathryn, and thanks for jumping in.
      
      I can see your point about the people's understanding surpassing the intent of the authors - and I agree with it, but given the scope of the ratification field, (as in the number of different State conventions), and a singular predominate source of information with which to decide the meanings, (The Federalist Papers), I am still struggling to see a reason that the People's, (really the State Convention's participants), understanding would be at a contextual variance with the authors' intended meaning.
      
      Still a work in progress...
      
      GA

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      1. 95

         wildernessposted 6 years agoin reply to this

         It seems that the understanding would be much more in agreement with the writer's intent - at least everyone then was living in the same time period.
         
         But as a practical matter, it also seems that our job now is to determine what the authors meant - trying to justify what we want to see through the eyes of 13 different states and thousands of different people isn't going to work.

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         1. 84

            GA Andersonposted 6 years agoin reply to this

            That is my perspective also Wilderness. Although it wasn't 1000s of people, it was only the combined number of convention delegates, the point is the same. Added to the problem is that, unlike Madison's extensive notes of the Federal convention debates, there were very few State convention debate notes. So there really isn't much to go on regarding the delegate's thoughts - only that they did ratify.
            
            There is why I have such a quandary with Rakove's contention that the real original meaning determinant is the  understanding of the delegates. I think they are essentially one and the same with the authors' intentions.
            
            GA

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            1. 95

               wildernessposted 6 years agoin reply to this

               Well, I like to think that the delegates represented the will (and understanding) of the people that were to be the new nation.  In that sense there were thousands.  That's all.

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               1. 84

                  GA Andersonposted 6 years agoin reply to this

                  Sure thing bud. If you want it to be thousands, then it can be thousands. No problem.
                  
                  GA ;-)

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                  1. 95

                     wildernessposted 6 years agoin reply to this

                     
                     
                     Doesn't matter much, does it?  Especially as we pretty much agree on the outcome and what we need to consider today.

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3. 77

   Kathryn L Hillposted 6 years ago

   The papers were written so that the majority could get on board. The citizens who could read and understand the writing of the time ... how many?  thousands?
   Wondering.
   
   Few today can (easily) understand the writings of Madison and Hamilton. If one has a lot of time to sit, meditate and savor the writing, one can fathom what they were saying. VERY FEW people have this kind of patience today. The papers were written in the days before speedy planes, trains and automobiles. The modern man has little patience for reading and this skill may be diminishing even further!!! 
   
   For Instance:
   "From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction . . . A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking . . . The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations . . . Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,—is enjoyed by the Union over the States composing it."

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   1. 61

      dianetrotterposted 6 years agoin reply to this

      Trying to read any documents from those days is very difficult for me.  I guess it was a European style cursive.  One of my family surnames is Moss.  The name was transcribed on censuses as Mops, Mofs, etc.  It seems like every one wrote the exact same way and it was all hard to read.  it looked neat and pretty on paper.

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      1. 77

         Kathryn L Hillposted 6 years agoin reply to this

         ...yes, the ff's were used in the place of ss's!  So odd!

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         1. 77

            Kathryn L Hillposted 6 years agoin reply to this

            Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot".
            
            In the 21st century, four exemplifications of the original 1215 charter remain in existence, held by the British Library and the cathedrals of Lincoln and Salisbury. There are also a handful of the subsequent charters in public and private ownership, including copies of the 1297 charter in both the United States and Australia -------> The original charters were written on parchment sheets using quill pens, in heavily abbreviated medieval Latin, which was the convention for legal documents at that time.

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   2. 77

      Kathryn L Hillposted 6 years agoin reply to this

      "In debate on June 26, he (Madison) said that government ought to 'protect the minority of the opulent against the majority' and that unchecked, democratic communities were subject to 'the turbulency and weakness of unruly passions.'
      
      RE: the issue of factions:
      https://en.wikipedia.org/wiki/Federalist_No._10

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4. 77

   Kathryn L Hillposted 6 years ago

   The two main authors of the Federalist Papers were James Madison and Alexander Hamilton. In their youth, Madison had worked with Thomas Jefferson and Hamilton had worked with George Washington. Jefferson and Washington were the elders of Madison and Hamilton.

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5. 77

   Kathryn L Hillposted 6 years ago

   … "Madison served in the Virginia House of Delegates from 1784 to 1786. During these years in the House of Delegates, Madison grew increasingly frustrated with what he saw as excessive democracy. He criticized the tendency for delegates to cater to the particular interests of their constituents, even if such interests were destructive to the state at large. In particular, he was troubled by a law that denied diplomatic immunity to ambassadors from other countries, and a law that legalized paper money. He thought legislators should be "disinterested" and act in the interests of their state at large, even if this contradicted the wishes of constituents. Madison believed this "excessive democracy" was the cause of a larger social decay which he and others (such as Washington) thought had resumed after the revolution and was nearing a tipping point—Shays' Rebellion was an example."
   
   … "The historian Gordon S. Wood has noted that many leaders, including Madison and Washington, feared more that the revolution had not fixed the social problems that had triggered it and that the excesses ascribed to the King were being seen in the state legislatures. Shays' Rebellion is often cited as the event that forced the issue …"
   
   … "As Madison wrote, 'a crisis had arrived which was to decide whether the American experiment was to be a blessing to the world, or to blast forever the hopes which the republican cause had inspired.'"
   
   … "Madison initially hoped to amend the Articles of Confederation, and at the 1786 Annapolis Convention, he supported the calling of another convention to consider amending the Articles. After winning election to another term in the Congress of the Confederation, Madison helped convince the other Congressmen to authorize the Philadelphia convention for the purposes of proposing new amendments. But Madison had come to believe that the ineffectual Articles had to be superseded by a new constitution, and he began preparing for a convention that would do more than merely propose amendments. Madison was pivotal in persuading Washington to attend the 1787 convention—he knew how instrumental the general would be to the adoption of a new constitution."
   
   FROM https://en.wikipedia.org/wiki/James_Madison

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6. 77

   Kathryn L Hillposted 6 years ago

   … "By 1786, defects in the post-Revolutionary War Articles of Confederation were apparent, such as the lack of central authority over foreign and domestic commerce. Congress endorsed a plan to draft a new constitution, and on May 25, 1787, the Constitutional Convention convened at Independence Hall in Philadelphia. On September 17, 1787, after three months of debate moderated by convention president George Washington, the new U.S. constitution, which created a strong federal government with an intricate system of checks and balances, was signed by 38 of the 41 delegates present at the conclusion of the convention. As dictated by Article VII, the document would not become binding until it was ratified by nine of the 13 states.
   
   Beginning on December 7, five states–Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut–ratified it in quick succession. However, other states, especially Massachusetts, opposed the document, as it failed to reserve undelegated powers to the states and lacked constitutional protection of basic political rights, such as freedom of speech, religion, and the press. In February 1788, a compromise was reached under which Massachusetts and other states would agree to ratify the document with the assurance that amendments would be immediately proposed. The Constitution was thus narrowly ratified in Massachusetts, followed by Maryland and South Carolina. On June 21, 1788, New Hampshire became the ninth state to ratify the document, and it was subsequently agreed that government under the U.S. Constitution would begin on March 4, 1789. In June, Virginia ratified the Constitution, followed by New York in July."
   
   FROM http://www.history.com/this-day-in-hist … n-ratified

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7. 77

   Kathryn L Hillposted 6 years ago

   https://en.wikipedia.org/wiki/Shays%27_Rebellion
   The leaders realized they needed a powerful federal government. This power, they realized, would have to be checked/balanced.

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8. 77

   Kathryn L Hillposted 6 years ago

   The Constitution was all about The People. It addressed real problems that had to be solved.
   
   How is this for perspective?
   
   The Constitutional Convention:  (FROM Wikipedia)
   "Although the Convention was intended to revise the Articles of Confederation, the intention from the outset of many of its proponents, chief among them James Madison and Alexander Hamilton, was to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. The result of the Convention was the creation of the United States Constitution, placing the Convention among the most significant events in the history of the United States.
   
   The most contentious disputes revolved around
   
   *composition and election of the Senate,
   
   *how 'proportional representation' was to be defined (whether to include slaves or other property),
   
   *whether to divide the executive power between three persons or invest the power into a single president,
   
   *how to elect the president,
   
   *how long his term was to be and whether he could run for reelection,
   
   *what offenses should be impeachable,
   
   *the nature of a fugitive slave clause, whether to allow the abolition of the slave trade,
   
   *whether judges should be chosen by the legislature or executive.
   
   Most of the time during the Convention was spent on deciding these issues, while the powers of legislature, executive, and judiciary were not heavily disputed."  https://en.wikipedia.org/wiki/Magna_Carta

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9. 77

   Kathryn L Hillposted 6 years ago

   The Constitutional Convention[1]:31 (also known as the Philadelphia Convention,[1]:31 the Federal Convention,[1]:31 or the Grand Convention at Philadelphia[2][3]) took place from May 25 to September 17, 1787, in Philadelphia, Pennsylvania. Although the Convention was intended to revise the Articles of Confederation, the intention from the outset of many of its proponents, chief among them James Madison and Alexander Hamilton, was to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. The result of the Convention was the creation of the United States Constitution, placing the Convention among the most significant events in the history of the United States.
   
   The most contentious disputes revolved around composition and election of the Senate, how "proportional representation" was to be defined (whether to include slaves or other property), whether to divide the executive power between three persons or invest the power into a single president, how to elect the president, how long his term was to be and whether he could run for reelection, what offenses should be impeachable, the nature of a fugitive slave clause, whether to allow the abolition of the slave trade, and whether judges should be chosen by the legislature or executive. Most of the time during the Convention was spent on deciding these issues, while the powers of legislature, executive, and judiciary were not heavily disputed. Once the Convention began, the delegates first agreed on the principles of the Convention, then they agreed on Madison's Virginia Plan and began to modify it. A Committee of Detail assembled during the July 4 recess eventually produced a rough draft of the constitution. Most of the rough draft remained in place, and can be found in the final version of the constitution. After the final issues were resolved, the Committee on Style produced the final version, and it was voted on and sent to the states.

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10. 77

    Kathryn L Hillposted 6 years ago

    "Magna Carta originated as an unsuccessful attempt to achieve peace between royalist and rebel factions in 1215, as part of the events leading to the outbreak of the First Barons' War. England was ruled by King John, the third of the Angevin kings. Although the kingdom had a robust administrative system, the nature of government under the Angevin monarchs was ill-defined and uncertain. John and his predecessors had ruled using the principle of vis et voluntas, or "force and will", taking executive and sometimes arbitrary decisions, often justified on the basis that a king was above the law." Wikipedia, Magna Carta History

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11. 84

    GA Andersonposted 6 years ago

    Hi Kathryn, your posts of Wikipedia excerpts of the times were, because of my interests, like seeing clips of favorite old movies.
    
    To your point about an effort being needed for modern readers to understand writings of Madison's time, I agree. They aren't of the nature of sound bytes and talking points, or even 'Cliff Notes' that today's readers are so used to as their source of information.
    
    But... almost all things worthwhile require effort to achieve, and I think that the completeness and lack of ambiguity in writings like the first Madison excerpt you posted, are well worth that effort to understand.
    
    Look at your Madison example. Not only did he address specific points, he defined those points so we would know exactly what he was talking about. Pure Democracy? He defined what it meant and how it applied to his explanation. The same with "A Republic," and with his points of reason as it applied to the subject.
    
    Yes, it does take an effort to follow, but it is an effort well rewarded with understanding. And to that point... it is my near reverence for the particular care all the Constitution authors took to be just as clear in the meaning of the text of the Constitution that bedevils me to understand Rakove's contention of a different source for an Originalist understanding.
    
    GA

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