A recent debate between two prominent legal scholars has shed some light on how the Constitution is interpreted by modern-day intellectuals.
George Mason University Professor of Law and Volokh Conspiracy blogger Ilya Somin and University of San Diego law professor Michael Ramsey got into a lengthy discussion about elitist and populist interpretations of the Constitution, but something important was missing from the discourse.
Ramsey argued that the Constitution should be interpreted based upon the opinion of learned legal scholars of the time. Somin argued that this may be valid, however, populist interpretations of the Constitution must be taken into account as well. What was missing in this debate were the words of the founding fathers themselves. They were not taken into account.
Regarding the meaning of the Constitution, James Madison had a particularly illuminating quote.
The legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses.
In other words, Madison held that the ratification debates in the state convention serves as the place to distil the meaning of the Constitution. The ratifiers were elected by the people in their respective states to represent them in the ratification process, and their words illuminate the way the people viewed the document.
While their work is often admirable, many modern legal scholars tend to disregard Madison’s direction and instead focused on the views of experts and jurists who sometimes hold the founders with little regard, or even contempt.
The founding fathers were brilliant men who had the foresight to understand many of the controversies that would arise in the wake of their revolution. They were prolific writers as well. Additionally, their debates were often recorded. After reading their words, it is easy to understand how the Republic was supposed to function. Reading the founders can clarify and demystify many important questions that people have regarding Constitutional interpretation.
This does not mean that Constitutional interpreters, scholars and thinkers are not worthy of attention or that they lack credibility. The exchange between Somin and Ramsey in particular was thought-provoking and interesting. It was just missing the words of people who should always be brought up whenever the proper interpretation of the Constitution is discussed – the founding fathers and the ratifiers.
We need to get back to basics, and that means understanding the words of the those who debated and hammered out the Constitution. Viewing the Constitution through their eyes, we can restore the Republic through Constitutionally-valid remedies such as nullification.
If you need a place to begin your rediscovery of the Founders, James Madison writing in Federalist #46 is highly recommended.
