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
to constitutional interpretation by almost everyone, and many people believe them
. 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.
As this book demonstrates, that view is substantially incorrect. Competent Founding-Era scholars largely agreeon what most of the original Constitution’s 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.
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.”).