Understanding the Constitution: the great oversight



Here are five common statements about the Constitution. Their common characteristic is that they are all fake:

  • “The Constitution left the states no power to regulate commerce.”
  • “The federal government has no power to regulate immigration.”
  • “The Constitution prohibits the federal government from issuing paper money.”
  • “The founders made a sharp distinction between a republic and a democracy, and they only created a republic, not a democracy.”
  • “An amendment proposal convention is a constitutional convention that cannot be limited by law.”

All of these false claims emerged from a historical process – mostly during the 19th century – which I have called “The Great Oblivion.”

Formative Influences on Founders

Almost all of the major American founders were born and raised in the British Empire. The empire was a global entity that included England, Scotland, Wales, Ireland, large parts of India and North America, and many other possessions.

The founders’ education was based on a curriculum that emphasized, in addition to science and mathematics, Greek and Latin classics, later European and American history, and British and European literature.

Most of the founders were, or had been, practicing lawyers in the Anglo-American legal system. When James Wilson (from Scotland) or Alexander Hamilton (born on the British Caribbean island of Nevis) argued a case or drafted a document, they relied on English laws and court decisions. Even prominent non-lawyers, such as James Madison and George Washington, were well grounded in English legal concepts.

Additionally, the founders shared some common experiences: recent colonial history, the struggle with Britain (1775-1783), and service in the Continental and Confederate Congresses (1775-1789).

The great omission

The great oversight occurred when key influences on the Founders faded from American consciousness. Here’s how it happened:

As the Founders passed away, their personal memories were lost. They left many documents behind, but many of those documents were inaccessible to most constitutional drafters. For example, Madison’s notes on the Constitutional Convention were not published until after his death in 1836. Proceedings of state ratification conventions were not freely available until around the same time, and when they were published, it was in an imperfect form. The newspapers of the Continental Congresses and the Confederation were not published until the beginning of the 20th century. Many other documents were unknown and neglected in major academic libraries.

Also, after the Constitution was passed, Americans naturally wanted to be Americans, not just children of Britain. Noah Webster produced a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote stories from a strongly American point of view.

American writers began to misunderstand words and phrases with English and colonial meanings. Their mistakes were usually innocent — not like the deliberate distortions promoted in the mid-20th century and discussed in my Epoch Times series, “How the Supreme Court Rewrote the Constitution.”

In recent years, with the advantage of new publications and the Internet, most of the errors that have occurred in the Big Forgotten have been corrected. But some people keep repeating them. Here are some examples.

Example #1: The Commercial Clause

The Commerce Clause of the Constitution (Article I, Section 8, Clause 3) granted Congress the power to regulate “commerce…among the several States.” It left the states free to regulate where Congress had not.

In the early 19th century, the idea arose that the Commerce Clause gave Congress exclusive jurisdiction over interstate commerce – that the states had no role to play. Madison’s convention notes refute this notion, but by the early 19th century his notes had yet to be published. Traces of this misconception survive today in some of the Supreme Court’s erroneous judgments.Dormant commercial clauseand “Indian Trade Clause” (pdf) case.

Example #2: Immigration

The Constitution grants Congress the power to “define and punish … offenses against the law of nations” (Article I, Section 8, Clause 10). This included immigration regulations. The Constitution also left the power to the states to regulate immigration where the federal government had failed to act.

Some writers, not understanding that the law of nations included immigration, asserted that Congress had no authority on the subject. Others have correctly stated that Congress has this authority, but inaccurately concluded that it stemmed from the commerce clause. Still others have made the opposite mistake of thinking that states have no power over immigration.

Example #3: Privileges/Immunities

Variants of the word privileges appear three times in the original Constitution and once in the 14th Amendment. The corresponding word immunities appears once at each location.

Both were technical terms of 18th century law. A privilege was a benefit created by the government, a right. Examples included government jobs and pensions, as well as some important legal proceedings, such as trial by jury and the writ of habeas corpus. Because a privilege was created by government, the term did not include natural rights, which were granted by “nature and nature’s God”.

A person who exercises a privilege enjoys immunity to do it (pdf).

In 1823, a Supreme Court justice (acting without his colleagues) confused matters with unsubstantiated and unnecessary musings on the meaning of the privileges and immunities clause of the Constitution (Article IV, Section 2, Clause 1). Although its language was inaccurate and inconsistent, it was widely accepted by people unaware of what “privilege” and “immunity” meant to the Founders.

Example #4: Banknote

A comprehensive review of founding-era records shows that while the founders generally disliked paper money, they granted Congress the power to issue it and make it legal tender (pdf).

However, in the 19th century, most writers did not have access to complete archives. They erroneously concluded that Congress had no power to issue paper money, or at least no power to make it legal tender. Finally, the Supreme Court rejected these arguments, but only after a long struggle over a question that should have been easily answered.

Example #5: Republic versus Democracy

The founders opposed “pure democracy”, an Aristotelian term for absolute mob rule. Otherwise, they used the words “republic” and “democracy” interchangeably. Patrick Henry, for example, called the US states – all of which had republican forms – “democracies”. Eighteenth-century dictionary definitions of “republic” and “democracy” made no clear distinction between the terms. Historically, most republics (such as the Roman Republic) relied on direct popular democracy for their legislation (pdf).

Statements such as “We have a republic, not a democracy” did not become common until the 1840s. At that time, each of the two rival factions claimed to be the legitimate government of Rhode Island. The battle ended with a Case before the United States Supreme Court. Clever lawyers for the more traditional faction (misrepresenting a comment by Madison) argued that the other faction was too “democratic” to meet the Constitution’s standard that every state has a “Republican form of government” ( article IV, section 4).

The “republic versus democracy” myth has proven to be very tenacious. Some liberals use it to argue that states may not require popular votes before raising taxes. Some conservatives use it to criticize measures they deem too democratic to be republican.

In the view of the founders, however, the government they created is both a republic and a democracy.

Example #6: Amendment conventions

The myths discussed above date from the 19th century, but the claim that an amending convention is an “unlimited constitutional convention” does not seem to have become widespread until the middle of the 20th century. Although there is no serious doubt that a proposed amendments convention is a subject-limited state convention (pdf), alarms about an “unlimited constitutional convention” are still being aired for fundraising purposes, primarily by Washington, DC-based interests opposed to the federal government’s overreach limitation (pdf).

These alarms seem plausible only because key information about the constitutional amendment process was temporarily lost during the Great Forgetting.

The opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of The Epoch Times.


Robert G. Natelson, a former professor of constitutional law, is senior scholar of constitutional jurisprudence at the Independence Institute in Denver.


Comments are closed.