It is always interesting to consider opinions of constitutional interpretation from modern-day scholars – usually not for the content, but more often for what they omit. Rarely do they mention words of the founding fathers.

University of San Diego constitutional law professor Mike Rappaport’s recent blog titled “The Drafters and the Ratifiers exemplifies this phenomenon. In an otherwise insightful and interesting article, Rappaport neglects to include one essential component – the founders’ perspective.

He begins the article by saying, “It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters. I am not so sure.”

Rappaport may not be sure, but James Madison certainly was, as evidenced by the following 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.

Rappaport argues that both the drafters and the ratifiers played essential roles in the founding of the Republic, and that most certainly is the case. However, he errs when he puts them both on equal or near equal grounds in terms of importance. According to Madison, the ratifiers hold clear precedence over the drafters. This is a key to understanding how the Republic is meant to function.

The people of the states who ratified the Constitution ultimately determined its meaning. The ratifiers were elected by the people to represent their point of view. That fact makes their words paramount in understanding the will of the people. The people were meant to have the power, not a small group of elitists.

This is not to say that Rappaport holds an elitist view of Constitutional interpretation. From his work, it seems that the opposite could be said about him. However, the academic bias is to often lose sight of the founders’ words, and it is quite possible for even right-minded scholars to fall into that dangerous trap.

This bias must be overcome if we are going to have a stable Constitutional Republic. Modern jurists and legal scholars tend to allow for more government power than the founders would have ever imagined. Only by getting back to the original meaning of the Constitution can we begin to undo the damage that has been allowed by our failing institutions.

That is what the Tenth Amendment Center works to do. We ignore cosmopolitan opinions about the founding fathers, and work to revive their words so Americans can obtain the guidance necessary to properly steward the nation. We will take James Madison and Thomas Jefferson over the conventional wisdom of the collective any day. Help us succeed by educating yourself and others about what the Constitution is supposed to mean, and then act as the antidote for the totalitarian state and its functionaries.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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