What it takes to understand the Constitution

Those who claim a few minutes is “all it takes” to understand the Constitution are sadly unaware of the journey they have taken to get to that point. The Constitution is a document written in the legal English of 1787. That is not the same language used in 2010. If you use the legal English of 2010 to read the legal English of 1787 you won’t understand it. You might think you understand it, but that is the position of an undereducated person.

When you try to understand a passage in the Constitution, or any other document, in any language, the process of understanding did not begin when you opened your view of it. It began when you were born and first heard language spoken around you. Your ability to understand it then developed through childhood, then perhaps 12 years of public school, 4 years of college, 3 years of law school, and then 5-6 years of interning with a law firm before the senior partners think you are ready to take a case on your own. So maybe by the age of 30 people might expect you to be able to read a contract, a court opinion, a statute, or a constitution.

So don’t say it only takes someone a few minutes (perhaps with the help of an old dictionary) to understand the Constitution. It took you at least 30 years, even if it seemed like the first few years were slow, at least for legal English.

But that was the legal English of today, not of 1787. That’s a foreign language to us. It might be superficially similar, or even be substantially the same for large parts of it, but there are a lot of words and phrases whose meaning has changed a great deal in 200 years. For a discussion of them see Originalist Issues.

For someone to learn the legal English of 1787, starting at age 30 or more, it should be approached like learning the San language spoken by the tribal !Kung (yes, the exclamation point is not a typo — it stands for a clicking sound made with the tongue) people of Southwest Africa, lovingly depicted in the hilarious movie The Gods Must Be Crazy. It is not just a difference in coding, but a difference in cultures, something one doesn’t get just by reading or writing (the !Kung don’t have a written language). Outsiders who have learned it say it takes at least 15 years to get most of it, and they are still not sure.

I have been studying the Constitution, trying to understand it the way the Founders did, for more than 50 years, and I’m still discovering new meanings in it. Much of that time has been spent trying to explain it to people who don’t even understand their own language, much less the language of the Founders.

Yes, the Constitution has definite meanings that can be discovered, but don’t underestimate the effort that requires. It is an effort well worth making, but it does take a long time.

What happened with Wickard?

Much discussion of the Wickard v. Filburn line of precedents portrays what happened as a misconstruction of what the term “commerce” means in the Constitution, but that is not what happened. The 1942 Supreme Court did not say Filburn’s corn was “commerce”, but that it had a “substantial effect” on commerce, enough to thwart the attempt by the government to “regulate” it. That is a construction of the “Necessary and Proper” clause, not the Commerce Clause. The decision erred by construing a “power” as “getting a desired outcome” rather than “making a proper effort”. It conveniently overlooks the trailing words “to carry into execution the foregoing powers…” which is about making an effort, not getting a result.

The Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:

The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

This misconstruction in Wickard is not something new. It goes all the way back to McCulloch v. Maryland, 17 U.S. 316 (1819), which it cites as authority, and which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.

CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carry into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.

All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

Note this contains a logical error. That all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.

Until this misconstruction is understood it is not easy to overcome it. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result and that the power to regulate is the power to do whatever it takes to get a result. See Draft Amendments.