Understanding the Constitution: The Great Forgetting

A copy of the U.S. Constitution is seen in Washington on Dec. 17, 2019. (Andrew Harnik/Pool/Getty Images)

Commentary

Here are five frequent assertions about the Constitution. Their common characteristic is that they’re all false:

• “The Constitution left the states with no power to regulate commerce.”
• “The federal government has no power to regulate immigration.”
• “The Constitution forbids the federal government from issuing paper money.”
• “The Founders drew a sharp distinction between a republic and a democracy, and they created only a republic, not a democracy.”
• “A convention for proposing amendments is a constitutional convention that cannot be limited by law.”

All of these false assertions emerged from a historical process—primarily during the 19th century—that I’ve labeled “The Great Forgetting.”

Formative Influences on the Founders

Nearly all the leading 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 numerous other possessions.

The Founders’ education was based on a curriculum that emphasized, besides science and mathematics, Greek and Latin classics, subsequent 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 (a native of 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 leading non-lawyers such as James Madison and George Washington were well-grounded in English legal concepts.

In addition, the Founders shared certain common experiences: recent colonial history, the struggle with Great Britain (1775–1783), and service in the Continental and Confederation Congresses (1775–1789).

The Great Forgetting

The Great Forgetting occurred when key influences on the Founders fell out of the American consciousness. Here’s how it happened:

As individual Founders died out, their personal memories were lost. They left many documents behind, but many of those documents were inaccessible to most constitutional writers. For example, Madison’s notes of the Constitutional Convention weren’t published until after his death in 1836. The debates of the state ratifying conventions weren’t freely available until about the same time, and when they were published, it was in imperfect form. The journals of the Continental and Confederation Congresses weren’t published until early in the 20th century. Many other records lay unknown and neglected in major university libraries.

Moreover, after the Constitution was adopted Americans quite naturally wanted to be Americans, not merely 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 histories 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 willful distortions promoted in the mid-20th century and discussed in my Epoch Times series, “How the Supreme Court Re-Wrote the Constitution.”

In recent years, with the advantage of new publications and the internet, most of the mistakes that arose in the Great Forgetting have been corrected. But some people continue to repeat them. Following are some examples.

Example 1: The Commerce Clause

The Constitution’s commerce clause (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 hadn’t done so.

During the early 19th century, the idea arose that the Commerce Clause granted Congress exclusive jurisdiction over interstate commerce—that the states had no role at all. Madison’s convention notes disprove that notion, but in the early 19th century, his notes hadn’t yet been published. Traces of this misconception survive today in some of the Supreme Court’s erroneous “Dormant Commerce Clause” and “Indian Commerce Clause” (pdf) cases.

Example 2: Immigration

The Constitution grants Congress power to “define and punish ... Offenses against the Law of Nations” (Article I, Section 8, Clause 10). This included regulating immigration. The Constitution also left power to the states to regulate immigration where the federal government hadn’t acted.

Some writers, not understanding that the law of nations included immigration, claimed that Congress had no authority over the subject. Others correctly stated that Congress did have that authority, but inaccurately concluded that it was derived from the commerce clause. Still others made the opposite error of thinking the states had no power over immigration.

Example 3: Privileges/Immunities

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

Both were technical terms in 18th-century law. A privilege was a government-created benefit, an entitlement. Illustrations included government jobs and pensions, and some important legal procedures, such as trial by jury and the writ of habeas corpus. Because a privilege was government-created, the term didn’t include natural rights, which were bestowed by “nature and nature’s God.”

One exercising a privilege enjoyed immunity for doing so (pdf).

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

Example 4: Paper Money

A complete review of the Founding Era records shows that while the Founders generally disliked paper money, they did grant Congress the power to issue it and to make it legal tender (pdf).

However, during the 19th century, most writers didn’t have access to the complete records. They erroneously concluded that Congress had no authority to issue paper money, or at least no authority to make it legal tender. Eventually, the Supreme Court rejected those arguments—but only after a long struggle over a question that should have been answered easily.

Example 5: Republic Versus Democracy

The Founders opposed “pure democracy,” an Aristotelian term for unmitigated mob rule. Otherwise, they used the words “republic” and “democracy” interchangeably. Patrick Henry, for example, referred to the American states—all of which had republican forms—as “democracies.” The definitions of “republic” and “democracy” in 18th-century dictionaries showed no sharp distinction between the terms. Historically, most republics (such as the Roman Republic) had relied on direct popular democracy for their lawmaking (pdf).

Statements such as “we have a republic, not a democracy” didn’t become common until the 1840s. At that time, each of two rival factions claimed to be the legitimate government of Rhode Island. The battle ended in a case in the U.S. Supreme Court. Clever lawyers for the more traditional faction (distorting a comment by Madison) argued that the other faction was too “democratic” to meet the Constitution’s standard that every state have a “Republican Form of Government” (Article IV, Section 4).

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

In the Founders’ view, however, the government they created is both a republic and a democracy.

Example 6: Amendments Conventions

The myths discussed above date from the 19th century, although the claim that an amendments convention is an “unlimited constitutional convention” seems not to have become widespread until the mid-20th century. Although there’s no serious doubt that a convention for proposing amendments is a convention of the states limited by topic (pdf), alarms about an “unlimited constitutional convention” still are disseminated for fundraising purposes—most powerfully by Washington-based interests opposed to limiting federal overreach.

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

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