What a written Constitution means

[Calvin Johnson]

    The Constitution was written in Philadelphia.   Once the Consitution
went out to the states for ratification, the debaters stopped having a
single meaning.  There were 3 million citizens and 4.5 million
interpretations of what what meaningful about the C.  The papers were
filled with doggeral and venom,  conspiracy and  inspiriation, and lots
of things we do not think of as fitting the writing of the C, but still
what the authors thought were the most important thing to say.  The 13
conventions had 400 delegates and no obligation in any of them to come
to a single agreement.  In Philadelphia, I find it plausible that some
language was just a cover for a disagreement, while agreeing to deem an
agreement, but at least the many committees redoing the language, the
May-September discussions and the single text did focus the
understandings around a single meaning.  In the ratification debates
there was no discipline, no focus, not a single meaning, but 4.5 million
meanings.  If we want a singular Constitution, we need to stop lookinga
fter SEptember 17, 1787 or at least use everything said after that date
as reflective or secondary evidence -- the shadow on the wall and not
the form itself.  
    Now a lot of people like the ratification debate because they can
cherry pick what they like and ignore the rest.  They can even undo the
Philadelphia Convention writing.  For instance the Framers in
Philadelphia copied the Articles of Convention in format and language,
but they took out the all important limitation of Article II taht
Congress would have only those powers expressly delegated to it.
Randolph explained to Viriginia that the Framers had found the
lmiitation disastrous to the union and that even the federal passport
had been challenged. Since Randolph is on the COmmittee of Detail that
did, he is credable.   The peace time passport is not an unenumerated
power, but the Framers wanted the Congress to have the power.  Pinckney
nontheless told South Carolina that Congress would have only teh powers
expressly delegated to it.
    A written Constituiton allows us to say that Pinckney is wrong.  The
writing has no such limitation.  Indeed in the 10th Amendmetn the
Congress defeated Anti-Federalists attempts to put in an expressly
delegated requirement.   Pinckney had no such authority to amendment the
COnstituoin by one voice and we need to ignore him. Indeed there are a
lot like that: lies, misunderstandings, or at least political spins that
need to be ignored.  I am willing to let in ratification debates as
(dubious) secondary evidence of the writing.  But do not forget that it
is a written Constitution that we are interpreting.
     We can say that this or that ratifier misunderstood the
Constitution or even that this or that ratificaiton convention as a
whole misudnerstood it, and ratified it in error.  We can not say the
Philadelphia Convention misunderstood the Constitution because they
wrote it. 
    The C is alos like a Porsche.  The owner who buys it is sovereign
and if they do not buy it, it is not bought.  So the ratifiers are like
the owner, thier decision is sovereign even if ignorant and misinformed.
In a democracy most voters are rationally ignorant, knowing just enough
to decide what party to vote for. The votes count.  Still if you want to
understand the Porsche, talke to the engineers who designed it, and if
you want to understand the reasons fro Constitutional clauses look to
Madison's notes of Philadelphia.  The voter in a democracy is minimallly
informed and sovereign and so too the ratifers.  
    
    Jefferson's Revolution of 1800 never got into the writing no matter
how radical and indeed no matter how many votes he had.  That is the
constructive function of Article V, setting up standards that block
Jeffersonian states rights interpretations.  Jefferson was fine for his
time, given this is a democracy, but his errors can be amended easily as
soon as the majority shfits.  We are not bound by Calhoun, Jefferson no
matter how passionate there claims to Constitutional truth.   For better
or worse the document whose ink was dry on September 18, 1787 still has
some binding force. 
 
Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th)  St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
 

________________________________

From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Sunday, June 18, 2006 3:01 PM
To: Calvin Johnson
Cc: RJLipkin at aol.com
Subject: Re: Why not the Jeffersonian Constitution?


        If you mean that the meaning assigned to the text is determined
by the leading, vocal Federalists, I disagree.  If anything the meaning
would be determined by the ratifiers--both Federalists and
Anti-federalists (from what I've heard anti-federalists were the
majority of voting Americans at that time.  But no one person or group
has dominion over constitutional interpretation in that manner. First,
dated meanings or interpretations--if they exist at all--are always
subject to future interpretations. Second, I don't believe in dated
meanings on the grounds of interpretive theory.  (That's way new
readings of Hamlet captive out imaginations.) Third, just as
contemporary interpretive debates over constitutional would simply fail
to provide future generations with any usable single-packaged
interpretation of what we mean by "free speech" or "equal protection" we
cannot delve back into the past to a single date to ascertain what our
ancestors meant.  Language simply doesn't work like that, in my view.
Language suggests and future practice confirms. Neither is interesting
or possible alone. 
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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