The “Original Intent” Scam

By Kyle Roberts

The former Alaska Attorney General John Havelock recently wrote:

“The ‘Originalists’ of 2011 want to throw out much of what generations of judges have had to say, [about the Constitution] in favor of a new interpretation of what the draftsmen thought.”

“Originalists color themselves as conservatives, but this approach … reveals the Originalists as striving to make radical changes in the meaning of the Constitution so they may bring radical change to the country.”

“Originalists have a new social agenda for the United States disguised as the application of conservative principles.”

Interesting that he calls approach to understanding the meaning of the Constitution that does not fall in line with what the courts have said “radical.”

This is nothing more than the continuation of the first debate between Jefferson and Justice Marshall over who has final say on constitutional interpretation.

In the famous Marbury v. Madison case, Marshall aid, “There must be an ultimate arbiter somewhere and … it is emphatically the province and duty of the judicial department to say what the law is.”

Whereas Jefferson believed otherwise and he communicated it to many people. To William Johnson he said:

“But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States.

“Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”

To William Jarvis he said:

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps … The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.

It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Unfortunately, Marshall won.

John Havelock is simply one among many who believe in the Marshall doctrine of Judicial Review – or technocratic judicial supremacy.

This can essentially be summed up as the Constitution means what the courts say it means, regardless of: what other branches, or the people, say to the opposite; or to historical precedents of other branches disagreeing with the courts and simply ignoring their opinions; or to what the original understanding is.

Jefferson’s view of Constitutional interpretation is called concurrent review.

His view is, of course, very democratic in its operation, and while it presents unique challenges of its own, it is the most true to the actual text of the Constitution and its delegation of powers, as well as to a free society.

The two opposing views are, as he said, the difference between an independent oligarchy and a sovereign people.

What about proper Constitutional interpretation though? How is it to be approached within Jefferson’s framework of concurrent review?

Where is a person to begin when examining the legal framework of the Constitution itself? Do court cases and precedent matter in the grand picture, or should they serve a minor role of historical experience and hindsight while examining particular cases?

If original intent is so important to freedom as “The 2011 Originalists” have said then what is it, and how is it applied?

Original Intent versus Original Understanding

There are three basic founding era groups cited as authorities on the principles of American freedom and Constitutional intention.

First, the Framers. This group consists of the 55 delegates who met in Philadelphia from May to September in the 1787 Covention.

Second, the Founders. This group usually is referred to as those ‘demi-gods’ of the time who were prominent figures during and after the revolution and who had significant public influence within the Confederation and during ratification. This group can also be referred to as simply the 3 million of people who lived in the colonies during the time.

These two groups and the literature they produced make up the class of information usually referred to by “originalists” as the original intent of the Constitution.

However there is another group that has been forgotten. The last group, the group least referred to and least known, and the most important: the Ratifiers.

Specifically, this group is made up of all those delegates in the several State Conventions who debated the Constitution, discussed its terms, its merits, its practicality, its weaknesses, shortcomings and powers.

It also includes all the literature from newspapers, correspondence and public speeches given by many many people all over the colonies. There is an immense amount of literature surrounding the ratification of the Constitution.

The Federalist Papers are the most well known resource, though at the time they were fairly obscure. It was only to the State of New York that they were written.

The writings of Tenche Coxe, for example, had far greater reach and were much more well known than the newspaper articles that produced The Federalist.

We read The Federalist because of its outlined argument and structure, not because it is the most correct or was the most prolific at the time.

Original intent, as generally discussed and undestood today, has a few problems.

In my Constitution classes I always ask “whose intent?” Most people don’t realize that there was a massive war of words between various factions over what the Constitution should do, what it should say, and what it should/does mean.

They disagreed. Any person can cite any number of quotes from various people who participated that run counter to the opinions of the next person.

Specifically, original intent should refer to the debates limited to the summer convention of 1787. Original intent in this context means “what did the drafters mean when they wrote the document?”

Yet the intent of the Convention does not have legal status. While it does serve as a guide, it does not – and did not – have force of law when discovering what the document means.

This knowledge comes only from the ratifying conventions of the several states. It was the meaning they attached to the document as a whole and to its various clauses as they understood it at the time and was for them a very real condition of ratification.

They essentially said to the proponents of the Constitution, we will ratify this if we understand it to mean the things you say it means, and if you guarantee a bill of rights. Otherwise we want nothing to do with it.

It is this original understanding that had, and should still have, legal force when interpreting the Constitution. It is as binding as the document itself.

The Constitution As A Public Trust

Why are the debates in the state conventions so critical to understanding the Constitution from a legal standpoint? Why are they binding?

The Constitution was framed – by the framers – following common legal elements of trusts in the founding era.

Most of the attendees of the Federal Convention were well-practiced and very successful private law lawyers. They spent a bulk of their time dealing with contracts, trusts and wills. Even those who weren’t lawyers were acquainted with the mechanics and instruments of law.

The Constitution contains language that had clear legal meaning and gave clear legal direction. Many common elements of legal trusts in the founding era were written right into the Constitution.

Here are some common legal elements of trusts in the founding era.

A legal trust delegated power to an agent to:

1. Do everything the creator of the trust would do if present;
2. Act as he (the agent) deemed fit and proper in accordance with delegated powers.

If the agent was not told otherwise, power was also specifically granted to:

1. Do everything that is absolutely necessary to carry out specific powers;
2. Choose the best method, among many, for executing the specific powers;
3. Do everything that is reasonably necessary – or incidental – to carry out specific powers.

Agents who were granted this power were also required to act in Good Faith:

1. The agent must maintain undivided loyalty to creator and beneficiary;
2. The agent’s actions must be proper to his delegated powers;
3. Agents must also:
   1. Remain above “corruption,”
   2. Be a disinterested promoter of creator’s and beneficiary’s general interest and welfare.

As you can see there are terms here that are present in the Constitution. Terms like necessary, proper, general welfare and the idea of a set of delegated powers.

It was these clauses in the Constitution that received the most censure from oponents of the document and ratification.

They claimed the terms were ambiguous and would give the central government unlimited power, would allow them to legislate for whatever they deemed necessary and would eventually end in the worst tyrannical system the world has seen.

This is why the ratification debates are so important. The framers and the proponents of the Constitution had to convince everyone else of the legal meaning behind the phrases.

They also had to show and convince them that the Constitution was written after the manner of a legal trust.

Here are the basic elements of a trust:

1. Trustor, settlor, or creator;
2. Trustee or agent of the trustor and beneficiaries who is delegated certain powers to carry out – or execute – the terms of the trust;
3. Beneficiary, who is the party(s) protected and benefited by the trust;
4. Trust is intentially made and accepted by the proper parties.

In context of the Constitution, then, who represents the different parties?

When I ask my Constitution classes who the legal creators, or the trustors of the Constitution were 100 percent of the time the answer is the 1787 Federal Convention.

This is incorrect for many reasons. The correct answer is the Ratifiers. It was the people of the several independent States through the voice of their delegates at the ratifying conventions.

Let me clear about this. It was not the people of the nation as a whole. It was the people of each separate State, independently ratifying. This is the exact direction and condition of making the Constitution legal as given in Article 7.

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution… .”

Who are the other parties?

The trustees are the officers who will execute the duties of the specific offices created by the Constitution. They are the representatives of the people and the states; also the President and the Justices; and all other officers and departments of the government.

Who are the beneficiaries? The Preamble states that it is the purpose of the Constitution to transfer the blessings of liberty the Constitution will create to the posterity of the people. This is another significant element and purpose of a legal trust.

What was the role of the framers, of the Federal Convention? They were simply the hired lawyers whose duty it was to draft the document. Once finished they referred it back to their principals (or the people for whom they acted as agents) for review, debate, and acceptance.

Who are the beneficiaries? WE THE PEOPLE.

It is essentially the same model as if I were to hire a lawyer to write up a trust for me and my family. He would draft it, then we would sit down and read over every word checking consistency, meaning and arriving at mutual understanding.

If I disagreed with certain words or phrases, or wanted other things added because I did not feel there was enough protection and security from corruption or outside influence then I would suggest changes or seek to know what the words or phrases meant.

This is exactly what the relationship was and the procedure followed for the Constitution.

The lawyers – framers – wrote it or drafted it. Then they went and sat down with the trustors (who were also the immediate beneficiaries) and discussed the terms and merits of the legal instrument.

Some quotes from ratifiers and others who understood this relationship:

“Parliaments possess no power beyond the limits of the {trust} for the execution of which the were formed. If they contradict the trust, they betray their constituents and dissolve themselves.” – Richard Price

“Notwithstanding the different modes in which [state and federal officers] are appointed, we must consider both of them, as substantially dependent on the great body of the citizens of the United States.”

“The Federal and State Governments are in fact but different [agents and trustees of the people,] instituted with different powers and designated for different purposes.” – Federalist 46

“[The Constitution is]…a great {power of attorney,} under which no power can be exercised but what is expressly given.” – James Iredell

The concept was also written right into the document:

“Judgement in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, {Trust} or Profit under the United States…” – Article 1, Section 3, Clause 7

“…no religious Test shall ever be required as a Qualification to any Office or public {Trust} under the United States.” – Article 6, Clause 3

Robert Natelson, in his recent book “The Original Constitution: What It Actually Said And Meant,” comments on the ratification debates and the Constitution as a public trust:

“The purpose was to reinforce the role of congress as agents of the people, exercising implied incidental (necessary, as a legal term) power ‘for carrying into execution’ their written instructions (the Constitution), [according] to [normal requirements of private] trusts. This was the meaning the Federalists sold to the ratifying public.”

The Necessity of Original Understanding

Now, if we want to know what the proper interpretation of the Constitution is where should we look? Solely to the rulings of the Justices? Many of whom cite “authority” as other court rulings which took place many decades after ratification?

Or, should we turn to what the ratifiers, or the legal group that made the Constitution a legal document, who decided what the Constitution means?

The judicial technocrats want us to believe that their way is the only way; and not simply the only way, but the only right way. Everything else is radical.

Turning to the original sources of the ratification debates helps us see clearly what they understood the clauses to mean, on what terms they would accept the new Constitution (for example Rhode Island didn’t want anything to do with it until a bill of rights was guaranteed), and what the role of the officers would be.

The officers of government were to be agents, or trustees, of the people. They were granted specific and limited powers, just like a power of attorney. By default and as a standing rule in legal instruments they could not exercise any power or do anything that was not specifically granted in the document.

This is why Jefferson says the Tenth Amendment is the keystone and foundation of the Constitution. It enshrines the legal principles of trusts, trustees, and delegated powers, which Jefferson as a lawyer was very familiar with.

If John Havelock believes “Originalists” have a new radical social agenda for America through changing the meaning of the Constitution by referring to its original understanding, then he obviously does not agree with the original direction the ratifiers understood the Constitution would give to the new America society.

He therefore must buy in to a different direction. That direction, which despises and seeks to discredit original understanding, is a scam against the American people.

This is why judicial review as the sole arbiter of Constitutional interpretation is adverse to freedom.

Jefferson’s model of concurrent review and the legal principles of the Tenth Amendment, i.e. delegated powers, elements of trusts, ratification understanding, are so critical to lasting liberty and proper use of power.

It is “the foundation of the Constitution” he said. And added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.”

Such will be our continual lot, as led by the John Haverlock’s of the world, unless we educate ourselves in the original understanding tradition of Constitutional interpretation.

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Kyle Roberts is a small business owner who has committed his life to the cause of freedom. He is dedicated to recreating strong local self-government in his community by creating, and helping others create, institutions that create and preserve freedom.

He teaches a four-part lecture series on the Original Understanding of the Constitution for free to the community.

Kyle and his wife Kim own and operate Prudent Living Food Storage. They live in Spanish Fork, Utah with their two children.

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