Constitutional Nuggets: What the Constitution Really Meant About …

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This page gives you quick summaries—without any political agenda and without regard to what the courts have ruled—about the Constitution’s meaning on controversial subjects. You might not like all the answers provided below (it would be odd if everyone agreed with every part of the Constitution all the time!), but the answers are honest and based on thorough objective research. For more info on these and other issues, see Rob Natelson’s handbook The Original Constitution: What It Actually Said and Meant (2d ed., 2011).

Advice and Consent: The Senate’s power to advise and consent does not mean the President must consult the Senate in advance of recommending an appointment or a treaty. During the Founding Era, the term “advise” in this setting meant “to deliberate,” “to take under advisement.” Once the President has made a recommendation, the Senate may deliberate on it and decide whether to consent. See The Original Constitution: What It Actually Said and Meant (2d ed., 2011).

Amendment: The Constitution provides for amendment using state and federal legislatures (without executive vetoes) and state and federal conventions. The conventions are all limited, one-time-only assemblies. Amendments can be proposed either by Congress (2/3 vote of each house) or by a Convention for Proposing Amendments. All amendments have to be ratified by 3/4 of the states. Congress decides whether ratification is by state legislatures or state conventions.

Like the other two kinds of conventions authorized by the Constitution, a Convention for Proposing Amendments is a limited-purpose body and not a “constitutional convention” or “con-con” as often claimed. Congress must call a Convention for Proposing Amendments when directed to do so by 2/3 of state legislatures, and the convention commissioners (delegates) are agents of their respective state legislatures. Thus, the state legislatures can limit the convention’s agenda, but must leave to the convention the actual writing of any amendments. All proposed amendments, whether proposed by Congress or Convention, must be approved by 3/4 of the states. See Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments” 65 Fla. L. Rev. 615 (2013); Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 ( 2011);  Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers (Independence Institute, 2012);  Amending The Constitution by Convention: Lessons for Today from the Constitution’s First Century (Independence Institute, 2011) and Amending the Constitution by Convention: A More Complete View of the Founders’ Plan.

Campaign finance. The original Constitution gave Congress very little power to regulate presidential elections, only limited power to regulate congressional elections, and virtually no power to regulate campaigns. Article I, Section 4 (the Times, Places and Manner Clause) is cited to justify congressional authority to regulate campaigns, but the Clause was not that broad. Authority over campaigning was left to the states. See The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1 (2010). Government-mandated disclosure of writers and contributors also violates First Amendment’s “the freedom of the press” as the Founders understood that term. See  Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding (pub. pending 2014).

Commerce: The Constitution empowered to regulate “Commerce” with foreign nations, among states, and with Indian tribes. “Commerce” means mercantile trade in goods and services and some related categories such as navigation, commercial finance, and cargo insurance. ”Commerce” does not include manufacturing, agriculture or other land use, criminal law, the court system, social services, or non-economic activity. Generally, the Constitution does not empower Congress to regulate commerce wholly within states.   See The Legal Meaning of “Commerce” In the Commerce Clause, 80 St. John’s L. Rev. 789 (2006). Under the Necessary and Proper Clause Congress sometimes has power to regulate activities that, while not “Commerce,” are intimately connected but subordinate to foreign, interstate, or Indian commerce. (See below.)

Due Process Clauses: At the time of the Founding, the statement that the government could not deprive a person of “life, liberty, or property without due process of law” simply meant the state had to follow pre-existing law when proceeding against a person. Some argue that the meaning changed during the 19th century to provide broader protection against state action under the 14th Amendment. See The Original Constitution: What It Actually Said and Meant (2d ed., 2011).

Freedom of the Press & Anonymity: Although there was some ambiguity around the edges, this was a well-understood concept with fairly well-understood limitations (such as treason and libel). See The Original Constitution: What It Actually Said and Meant (2d ed., 2011). Freedom of the press included the right to participate in public debate anonymously, unless one were guilty of transgressing the boundaries of the freedom. The modern federal laws disclosure of contributors violates “the freedom of the press” as the Founders understood that term. See  Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding (pub. pending 2014).

General Welfare: The General Welfare Clause did not confer on Congress any power. It was a limitation on the taxing power granted by the same clause. The general welfare language limited congressional taxes to those whose revenue was dedicated to national (not sectional), general interest (not special interest) purposes. The current belief that the general welfare clause grants Congress power to spend for almost any purpose is based largely on a misunderstanding of 18th century English. See The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003); Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007).

Impeachment: Properly speaking “impeachment” refers only to indictment by the House of Representatives. Once the House charges an official under a “bill of impeachment,” the matter is then tried by the Senate. Only executive and judicial officers, not members of Congress, can be impeached. Historically, the grounds for impeachment are the same grounds that would cause removal of a private trustee for breach of trust—dishonesty, breaking an important law, negligence, disloyalty, etc. Commission of a crime is not necessary, but mere political differences are not sufficient. See The Original Constitution: What It Actually Said and Meant (2d ed., 2011).

Indian Affairs: The Constitution granted to the federal government only limited authority over Indian affairs, and current Supreme Court interpretation of congressional power over Indians is clearly erroneous. Properly construed, the Constitution grants Congress authority to regulate “Commerce” (what used to be called the “Indian trade”) with tribes, and the President and Senate can assume broader powers by treaty, if a tribe consents. Otherwise, interactions with tribes and individual Indians are a matters within the state sphere.  See The Original Meaning of the Indian Commerce Clause, 85 Denver U. L. Rev. 201 (2007).

Land: The federal government is entitled to hold “Territory” (land outside of state boundaries), enclaves (land acquired within state boundaries by state consent for enumerated purposes), and “other Property” (land acquired within state boundaries but without state consent for enumerated purposes). Federal power over enclaves is broader than over “other Property.” Contrary to 20th century court decisions, the Constitution did not authorize the federal government indefinitely to retain land for non-enumerated purposes. See Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).

Money: The Constitution grants Congress power to “coin Money and regulate the Value thereof.” This includes not just metallic coins, but money in any medium, including paper. ”Regulate the Value” means primarily to fix legal tender laws. States are prohibited from coining money or making anything but gold or silver coin a legal tender. See Paper Money and the Original Understanding of the Coinage Clause, 31 Harvard J.L. & Pub. Policy 1017 (2008).

Necessary and Proper Clause: This clause was based on very similar provisions common in 18th century legal documents, which in turn were based on earlier English documents written in Latin.

The Necessary and Proper Clause had no force of its own. The “necessary” part assured the reader that the listed powers of Congress included others that were “incidental.” An incidental power had to be less “worthy” (important) than its principal power and either customary or reasonably necessary to its exercise. For example, when exercising a “necessary” power, Congress could not assume control of all manufacturing on the ground that doing so was “incidental” to its power over interstate commerce. (Current Supreme Court decisions to the contrary are based on inadequate historical and legal research.)

This use of “necessary”—that is, to require a customary or other close connection between implied and stated powers— may derive in part from one of the Latin meanings of “necessarius:” a close family member or associate.

The “proper” part of the Clause incorporated the Founding-Era understanding that government was a public trust, and that laws must be in keeping with that trust. A law that, for example, was not reasonably impartial among citizens was not “proper.”    See The Origins of the Necessary and Proper Clause (with Lawson, Miller & Seidman) (Cambridge University Press 2010); Tempering the Commerce Power, 68 Mont. L. Rev. 95 (2007); The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004).

Although Chief Justice Roberts’ opinion in the ObamaCare case upheld the individual mandate as a tax, his treatment of the Necessary and Proper Clause may signal the beginning of a return to the original meaning of that provision.

Original Intent/Understanding/Meaning: Original intent is the intent of the Constitution’s drafters. Original understanding is what the ratifiers understood the Constitution to mean. Original meaning (or original public meaning) is what it would have meant to an engaged person at the time it was ratified. The rule at the Founding was that the Constitution would be interpreted according to its original understanding; if one could not recover the original understanding because the evidence was sparse or mixed, original meaning controlled. Original intent serves as evidence of original meaning or original understanding. Usually, but not always, all three categories provide the same answer. See The Founders’ Hermeneutic: The Real Original Understanding of Original Intent, 68 Ohio St. L.J. 1239 (2007).

Privileges and Immunities: Like “necessary and proper,” this was a common phrase in legal documents at the time of the Founding, and it had a specific meaning. “Privileges and immunities” were not natural rights, but only benefits given by government. The Privileges and Immunities Clause said that if a state granted a benefit to citizens merely by virtue of their citizenship, then it had to extend the benefit to visitors from out of state. Examples included access to the courts and habeas corpus. Because “privileges and immunities” did not include what the Founders called “natural rights,” this clause does not protect such liberties as freedom of religion, the right to self defense, or even the right to travel. Instead, those rights are partially protected in other sections of the Constitution.

Some people claim the meanings of “privileges” and “immunities” changed during the 19th century, with the result that the “privileges or immunities clause” of the 14th amendment is broader than the Privileges or Immunities Clause in the original Constitution.  See The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117 (2009).

Recess Appointments: The Constitution empowers the President to make temporary appointments without Senate approval in a provision authorizing him to “fill up all Vacancies that may happen during the Recess of the Senate.” As this clause was understood by the Founders, the vacancy must have been created during the Senate’s intersession recess. It is not sufficient that a pre-existing vacancy carry over into a recess, nor is it sufficient that the vacancy be created when the Senate is on a break within a session. See The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harvard J. L. & Pub. Pol. (forthcoming, 2014).

Religion: The Constitution created neither a secular nor a Christian nation. It created a theistic nation—i.e., one based on a non-sectarian belief in God. Those holding federal or state office were required to take oaths or affirmations, and the validity of those oaths and affirmations required belief in God. The First Amendment guaranteed freedom of religion to all theists and equal treatment of all religions.   It did not prevent discrimination against (or for) atheism or agnosticism. See The Original Meaning of the Establishment Clause, 14 Wm. & Mary Bill Rights J. 73 (2005).

For more information on these and other issues, see Rob Natelson’s handbook, The Original Constitution: What It Actually Said and Meant (2d ed., 2011)toc