Has John Marshall been understood?

Rob Natelson, a former law professor and now a constitutional scholar at the Independent Institute, wrote an article titled "The Greatly Misunderstood Chief Justice John Marshall". He argues that although later jurists have misconstrued three of his key opinions, Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden, they were correctly decided by original understanding. I have to disagree in part, and it goes to the larger question of whether the failures to comply with the Constitution are the fault of the Framers, or of ourselves.

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org. Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.

About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.

The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.org . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sandford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.

I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

Rob Natelson tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy not to cross the line into eisegesis.

See also Unnecessary and Improper .

Does the Constitution Still Matter?

The cover of the July 4, 2011 issue of Time magazine depicts a shredded Constitution superimposed with the question: “Does it still matter?”, by Time Managing Editor Richard Stengel. His answer to that question is that it does not, that it is little more than a relic of a different time, of interest perhaps to historians but no longer to be taken seriously as defining our civic duty. He recognizes that it increasingly being ignored and that there does not seem to be the political will to return the nation to compliance with it. His implicit question is, if people are not going to follow it or insist on it, then why bother to pay homage to it? Let's be honest with ourselves, he suggests, and scrap it.

There was a burst of objections to the article in many forums, 538 at the Time website. As I usually do, I added comments. Here they are:

The main cause of deviation from the Constitution is money: there is a lot more money for violating it than for defending it. See http://constitution.org for how you can help.
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Our challenge is to educate people in a competent understanding of the Constitution as originally meant. There are a lot of myths out there, competing for their acceptance: some from the self-interested elites and some from earnest but misguided laypersons (many of whom may be spreading myths as agents of the elites). The problem is complicated by the fact that the Constitution was not written in the English of today, but in the legal English of 1787, and people in that time disdained things like dictionaries, expecting legal scholars to immerse themselves in the subject for many years to acquire competent use of the language. The effort is worth it, but it is not just a matter of reading the Constitution with a modern (mis)education. See http://constitution.org
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For more on the subject see
Constitutional Construction http://constitution.org/cons/prin_cons.htm
Kentucky Resolutions & Virginia Report http://constitution.org/rf/vr.htm
Constitutional Convention http://constitution.org/dfc/dfc_0000.htm

While the many objections to this article might seem encouraging, we need to recognize that there were very few, and most not of high quality.

One of the better ones was by Rob Natelson, who wrote a response addressing some of the many illogical or inaccurate claims therein. It led to a discussion by David Kopel on the Volokh Conspiracy, in which I commented:

Sasha is correct about the flexibility of Latin word order. But it is worth while to segue into the general subject of the ways Latin (and Greek) influenced the language of the Constitution, and therefore the meanings that language had for the Founders.

An important example is the term “militia”. In Latin, it does not mean “armed group”. That would be volgus militum. The best translation would be “defense activity”, because soldiers were used not just for war but also for law enforcement and disaster response. The word, like many in English, is a kind of polyseme called an actronym, a word having the primary meaning of an activity that comes to also be used to refer to those engaged in the activity, or the occasion or place of the activity.

So to understand the meaning of “militia” in the Constitution, substitute the phrase “defense activity” wherever it appears.

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However, that discussion became somewhat pedantic. What was missing from these discussions were plans of action to correct the problem. There is much "viewing with alarm", but almost no one seems to be doing much about it, other than a handful of people like me, and I am not getting much support in my efforts. I do get a lot of favorable comment that I seem to have the only good ideas for action, but when I ask people to commit to taking action, they make excuses or just glaze over.

The old saying is "Power goes to those who show up." Yet a survey of constitutionalist groups across the country finds few and their meetings are not well attended. I have asked some potential participants why, and their vague answers indicate they don't want to get into a situation in which they will be asked to do anything, especially donate money. It is like people who don't go to church because they dread being presented with the collection plate, or being asked to volunteer for some charitable service.

I hope Stengel is wrong, but so far the evidence supports his position. What are you going to do to prove him wrong? If you don't set the example of action, don't expect others to do so.

So you want to raise the debt ceiling?

So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
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