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A Tavern in 1791: Preface to The Original Constitution

A Tavern in 1791: Preface to The Original Constitution

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Barack Obama and other supporters of unlimited federal power would like us to believe that we can’t uncover the Constitution’s original meaning. In essence, they’re telling us that we don’t have a Constitution at all. Rob Natelson’s book, The Original Constitution, shows us that such a view is little more than….a crock. The following is the book’s preface, reprinted with permission from the author. http://books.tenthamendmentcenter.com
Barack Obama and other supporters of unlimited federal power would like us to believe that we can’t uncover the Constitution’s original meaning. In essence, they’re telling us that we don’t have a Constitution at all. Rob Natelson’s book, The Original Constitution, shows us that such a view is little more than….a crock. The following is the book’s preface, reprinted with permission from the author. http://books.tenthamendmentcenter.com

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Published by: Tenth Amendment Center on Jun 16, 2013
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7T O C
P
REFACE
 A T 
 AVERN
 
IN
1791. . . .
It is Thursday, December 22, 1791. You live in Philadelphia, currently serving as the temporary capital of the newly-created United States of  America. It has been only fifteen years since Independence was declared,and less than three years since the federal government began functioningunder the United States Constitution.For a long time, it had been touch-and-go as to whether the Constitution would be ratified at all. Two states initially refused to agree, and of theremainder five had approved the document only after the Constitution’ssupporters and moderate opponents had cut a political deal calling for aBill of Rights. As soon as the new Congress met, two of the most importantstates, Virginia and New York, petitioned for a convention for proposingamendments to the Constitution. Only after Congress had approved theBill of Rights did Virginia and New York abandon their petitions and only then did the last two hold-outs, North Carolina and Rhode Island, join theunion. The fourteenth state, Vermont, came in at the beginning of 1791.Earlier on this day, you learned that the Bill of Rights finally had beenratified on December 15. So now, you reflect, the union is reasonably secure, evening is approaching, and your work day is done—and you areon a Philadelphia street corner with nothing particular to do. The weatheris chilly and blustery, but there is a cure for that: A warm punch in a cozy tavern. You enter the tavern and look around for a seat. The place is nearly full. Butthere is bench space at a long wooden table at one side of the room. Sittingaround the table are men you recognize— eminently respectable men—some of Philadelphias leading judges and lawyers. They are deep in debateabout an abstruse point of real property law. Not being a lawyer yourself, you do not think of that sort of discussion as the key to a good time. Butthere are no other seats. You slip into the empty chair and order your punch while the talk swirls around your head. Eventually, you decide to turn the conversationelsewhere. You give a little cough.
 
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The lawyers had barely noticed you, but now they turn their heads and break off the debate. “I regret that I feel unqualified to comment on yoursubject,” you say. “But, gentlemen, you know I am not a lawyer. May Isuggest another topic?”They seem interested. The prior discussion had been wearing thin anyway.“You no doubt have observed,” you continue, “that ten new constitutionalamendments were proclaimed last week.”“Yes,” responds one of your listeners. (You know him to be a distinguished judge.) “They should work some change upon the system.“That is exactly what I wished to pursue,” you add. “What is that system? And what change does the Bill of Rights effect upon it?”The lawyers look at each other. One of them—he is particularly knownas an expert in wills and fiduciary trusts—smiles. “Well, my friend, that isan expansive inquiry whose response might consume some time. Are youotherwise engaged for the next few hours? ” The others laugh.But you press your question. It is only seven o’clock, your spouse has goneto Carlyle to visit relatives, and you are
not 
“otherwise engaged.” Neither are you particularly eager to leave the warm tavern.“I am at complete leisure,” you respond. “Please, say on.The lawyers glance at each other. “Well, why not?” asks one. “As it happens, we are not engaged either. The courts are closed tomorrow, and our wivesare enjoying the comfort of each other’s society. I dare say they have nopresent need of us!” More laughter.“I think I can speak for my learned colleagues here,” the trust attorney interjects, “when I tell you that there is no topic on which we would ratherdiscourse than our new Constitution. We have exchanged views on thissubject before, and we differ on the small points. But I flatter myself that we are in accord on the great ones. You are a bit amused at how easy it is to induce lawyers to talk. You draw deep from the warm punch, and sit back, and listen . . .* * * *
 
9T O C
 What would those lawyers tell you that evening? What would have beentheir understanding of the scope of the new federal government and itspowers? What would they relate of the role of the states or of the people? What, in other words, was the actual legal force of our Constitution aslawyers and intelligent lay persons understood it in 1791?This book answers those questions. The answers were important in 1791, but they are especially important today, when our federal governmentseems to have wandered so far from its roots. Those answers are deemed
relevant 
to constitutional interpretation by almost everyone, and many people believe them
dispositive
. That is, many Americans—lawyers andnon-lawyers alike—believe the Constitution’s original understandingshould govern us today.To be sure, some people, including the former law instructor who now servesas President of the United States, believe that it is impossible to reconstructthe Constitution’s original meaning.
1
As this book demonstrates, that view is substantially incorrect. Competent Founding-Era scholars largely agreeon what most of the original Constitutions provisions mean. Much of the disagreement among constitutional writers results from unfamiliarity  with the historical record or with eighteenth-century law. We will never beabsolutely certain of the complete meaning of every constitutional clause.But we can reconstruct most of the original Constitution’s meaning withclarity and confidence.
HE
S
TRUCTURE
 
 AND
A
PPROACH
 
OF 
 
THIS
B
OOK 
Our lawyer friends in the Philadelphia tavern probably would not explainthe Constitution clause-by-clause, since it would be more efficient toapproach the subject by general topic. That is the approach in this book. We begin by surveying some history and values shared by the FoundingGeneration—material you would not have had to ask about in 1791, but might not know today. Then the chapters proceed theme by theme.For example, one chapter examines the role of the states in the federalsystem. Another treats all of Congress’ enumerated (listed) powers, nomatter where in the Constitution they appear. Still another discusses theexecutive branch. Because this book speaks of the Constitution as it stoodin late 1791, it generally uses the past tense. This keeps the work internally 
1 Barack Obama, The Audacity of Hope 132 (2006) (“It is unrealistic to believe thata judge, two hundred years later, can somehow discern the original intent of theFounders or ratifiers.”).

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