American public schools require instruction in American history. But they lack the essential study of what makes Americans distinctly American. American Studies is, in a nutshell, Constitutional Studies.
There is no significant difference between America and other societies and governments without noting this definitive and peculiar difference. (The two terms will be used interchangeably in this article.) And because for generations there has not been an emphasis on the thorough study of the Constitution, the current interest and resurgence in studying and defending it is problematic. One would naturally consider this interest good, since we have had a long sabbatical from such. The problem is that there is such a prevailing illiteracy on the subject that genuine students studying from a knowledge of nothing assume, upon learning a little, knowledge of everything. Though the concepts behind the Constitution are simple, the article itself is not so because the impetus and understanding that created it are not written in the document.
Laying the foundations of study
The first rule of logic—whether in math or reasoning, such as debate—and in study, is to never assume anything that isn’t a proven fact. Assumptions lead to misguidance and are the basis for incorrect premises. That is a treacherous practice.
If I assume the Constitution is designed from today’s perspective, or, conversely, to be taken only in the context of what is precisely, word for word, written in the document—nothing more and nothing less—I most assuredly will misunderstand our nation’s purposes. The former will lead me to assume I can do anything with it. The latter will lead me to assume the Constitution is not the sum total of many premises and paradigms with impact upon its formation. Unfortunately these are poor assumptions that will lead to a false premise, as they are not based in fact.
The fact is: the Constitution actually is the sum total of many premises and cannot be understood effectively without an understanding of those. These are some of the premises: The founders appreciated the culture from whence they and earlier immigrants came. But they also revered the teachings of several master philosophers, common law and all the rules of construction, Judeo-Christian religious mores and morals, and a thorough understanding of world history. Copious study of the Constitution will give understanding of our government and country. But it is not enough. We must understand these.
We must put ourselves in the footsteps of the Founders, reading their sources, their words, and their actions to discover the purpose and intent of the Constitution when the document was crafted, and after, when applied to proposed Acts of Congress. To that, we must add the early opinions of Justices, who added their input when a stalemate occurred between the states and Congress. These show the original role and purpose of the Supreme Court.
We will focus on those aspects least known or understood by the body of Americans: Common Law, Rules of Construction, and study of journals of various debates, and the legislative record to demonstrate the importance of a broad study of events, concepts and the people who created them in an effort to truly understand American Studies.
Common Law
Common law is described as that law, whether by judge or by tradition, that governs a people in their social norms and mores. It is not the letter of law, but the expected behavior through enculturation. What those are at the formation of a country or government determine the purpose and define the meaning of a law from that time forward. In the case of the United States, common law was actually English judicial precedence, combined with English customs, social norms and mores. It is misguidance to believe the Constitution separated the United States from its English roots. It did not. It was actually quite the contrary.
The Founders considered it a subconscious “given” and only acted to improve upon their roots. But that is not visible in the reading of the Constitution. It must be understood through study of several primary sources, such as Elliot’s Debates, Cooke’s Reports, and other journals in the early years of America, as well as the legislative record and documents. Common Law from England is not obsolete. It is still often used to support the basis of law in the U.S. Just one example is in the definition of criminal recklessness or destruction. The American definition changed following two English court case as late as the 1980’s forward, which modified the definition there first.
Rules of Construction and their import on Constitutional themes
Rules of Construction are simply those tools used to decipher the validity of a law or clause, especially pertaining to the Constitution. They are a consortium of reasoning, which, when combined, help determine what is appropriate law and what is not. Among the more common rules of reasoning are the Plain Meaning Rule (Literal Rule), which considers the meaning of a law by the regularly accepted language in the text at the time it was written and is not to be modified from its original form; the Golden Rule, found in Judeo-Christian Holy Writ, which is the basis for Natural Law and the subsequent Social Contract designed by John Locke reference by the Founders; The Mischief Rule—an important rule, it is at once critically ignored and the most abused method in determining the value of legislation. This rule questions the intent behind an Act. Does an act preserve or destroy the purpose of the Constitution? Does the legislation create harm to one over others—reducing the intent of inalienable rights? —And so forth. The danger in applying this rule is when a legislator applies intent, or a judge interprets intent in a way other than what was original, using instead his/her own definition of it. One must be familiar with all of history and the record in order to accurately assess whether mischief to the original intent will occur.
Even with the inherent flaws, this rule (coupled with the Common Law Rule) was most used by the Founders when deciphering the legitimacy of a proposed piece of legislation. Did it go to the intent of the Constitution? [Graham, Principles of Confederacy; pp6-11]
The Purposive Rule requires an understanding of history. Herein lays one of the fundamental laps in the Constitutional student’s education, to say nothing of most of our society who should understand the Constitution. Looking solely at the text of the Constitution without an historical narrative will most surely end in miscalculations and inappropriate legislation, to say nothing of Americans’ expectations. Two perfect examples lay in the ongoing debate about immigration, and in the resurgence of the theory that states have a right to “nullify” unwanted or unwarranted Federal legislation. To be clear, the scope of this discussion is in demonstrating the importance of thorough study of the Constitution as the basis of our American Studies. It is not a debate about the theories of nullification or the proper role of immigration law. That is saved for another day.
The former debate has led many groups to many varying conclusions. Some say immigration is not a federal responsibility because it is not literally listed among the duties of Article I, Sec. 8. They are using the Plain Meaning Rule, alone, for their interpretation. Others claim, by the same exact article and section that immigration is indeed included as a duty as it goes to naturalization. They are using the Mischief Rule to determine immigration law’s legitimacy. So too, are those who claim immigration is a natural action to oblige the mandate in Articles I, II, and IV, which protect the states from invasion.
Then, there are those who claim history proved immigration is not a duty of the Federal government at all because the Virginia and Kentucky Resolutions of 1798 declare it. This would be a form of the Purposive Rule except for one fatal flaw: the historical research into the purpose of immigration in relation to the Resolves of 1798 are not a thorough study of the issue or the Resolves. (We will discuss these Resolutions further when looking at the issue of nullification.) This rule is most difficult, as it requires in this day and age a high level of effort in researching all the history on any given issue. It is very easy to miss a critical historical fact or original perspective and thus miss entirely, a point or purpose in the Constitution, as research surrounding the Resolves demonstrates.
The Virginia and Kentucky Resolutions of 1798
In 1798, James Madison and his good friend Thomas Jefferson, one the governor of his state of Virginia, the other Vice President and residing in Kentucky secretly constructed a lengthy list of perceived infractions by the Federal Government regarding a number of issues, including immigration and silencing insults laid at the President (The Alien and Sedition Acts). Their list culminated in the resolutions. But the two parted ways on one main issue. nullification, which demanded and declared a right of states to nullify a federal law it deemed unconstitutional was the brainchild of Jefferson alone. Today, proponents of nullification and immigration laws on the state level only, and opponents of federal immigration legislation will cite the Resolves as their justification. There are inherent problems with using the Resolutions as support of any position, however.
While some of Jefferson and Madison’s grievances were well justified—those concerning curbing freedom of speech, for one, the two make some remarkably large errors in their arguments. In the Virginia Resolution is this statement:
…powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that ‘the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808;’ that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens:
While James Madison, in this segment of one resolution, claims the states have a right to immigration laws using this phrase in support of “migration of alien friends,” and Congress has none, he was a partner to the construction of the Constitution, and clearly knew the clause to which he refers regarding the “migration and importation” of people was referring to slaves and part of a compromise to end the practice of slavery by 1808. Madison knew the intent of that clause, spoke to it, himself, but knowingly ignored the Mischief and Purposive Rules in crafting his resolutions. The student of American Studies, having read both Madison’s notes and Elliot’s at least, will notice that Madison misuses the clause, understanding well its intended purpose as solely in regard to the slave trade and its eventual dissolution. That fact was cemented in the record to which Madison contributed, including this commentary about The 1808 Clause:
It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for their restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly unbraided the barbarism of modern policy; that within that period it will receive a considerable discouragement from the federal government, and may be totally abolished.
Concurrently, in the Kentucky Resolution is this: “the [Alien Act]…exercises a power no where delegated to the federal government.” Jefferson destroys his argument using the Plain Meaning Rule to justify his objection to new immigration laws enacted in Congress. Using a literal meaning rule to argue against the immigration laws automatically condemned the Resolutions themselves for usurping a power delegated to the Supreme Court—not the states. The Supreme Court declared it so. Neither did the other states actively support the Resolves. Madison, Jefferson, and their state legislatures were grossly outnumbered by the rest of the nation, who simply did not buy their arguments.
Some supporters of nullification will claim Jefferson was elected to President to remedy the Alien and Sedition Acts, and that as President, he successfully reversed those. While it is true that as President he pardoned those sentenced and jailed, Jefferson had nothing to do with the reversal of the Acts. Those Acts expired through a Sunset Clause, (which was customary in legislation of the day), on Mar. 3, 1801.
If a student of the Constitution is familiar—as they should and must be—with the debates of the Convention, and understands rules of construction the Founders used, they will dismiss the resolutions as, not only obsolete, but invalid. Madison, sideswiped the intent of them by ignoring the history of the Debates, even though he himself was not only party to the discussion but also vocally encouraged Federal involvement in state slavery immigration—contrary to his later stand with the Resolutions that the Federal government had no right to interfere in immigration. Thus, the student of the Constitution inquiring whether the Resolves of 1798 are justification for the states to nullify an Act of Congress will understand them to be an incredible source in support of nullification, and against federal immigration law.
The popularity of worshiping some Early Americans and vilifying others is of interesting note. This is caused from the lack of thorough reading about all the initiatives, comments and efforts of all the Founders. Case in point: The art of American Studies requires reading enough to note that while Jefferson was the author of the Declaration of Independence, he was not an author to the Constitution at all. He was in France. Yet, he is often quoted as a reference to the clauses and intent of the Constitution as if he were a major contributor. His comments were an afterthought—film critic commentary. Jefferson was a Founder but not technically a Framer. It would be excellent literacy for the student of American History to avail themselves of all the Framers who contributed during the Convention.
Additionally, the student of American Studies will recognize that singling out one Early American hero as the unquestionable resource for all things American and Constitutional is relegating the United States, not to the inspired consensus of a body of great and diverse men—thus creating balance, but the single mind of one. This defies the beauty of the American system that takes into consideration the efforts of all as the necessary injunction of our government. Thomas Jefferson was not “The People.” Nor was Washington. Hamilton was not a rouge charlatan. There were many great, and some under appreciated, contributors to the construction of the Constitution, who need to be completely studied. All of these men were imperfect but combined they were genius. Schools must provide and encourage thorough reading of our history, rather than cherry picking pieces, or worse, focusing upon little known and even less consequential records that are more politically correct than historically compelling. Effort to deeply study what actually makes us American will help us gain a proper perspective and understand the full intent and merit of our great American heritage.
Sources:
Elliot’s Debates
Madison’s Notes
Cooke’s Reports
The Federalist Papers
Kentucky Resolution of 1789; Thomas, Library of Congress
Virginia Resolution of 1789, Thomas, Library of Congress
Principles of Confederacy; John Remington Graham, Northwest Publishing Co. SLC]
First & Second Treatise of Civil Government, John Locke
Blackstone’s Commentaries
Thomas, Library of Congress: www.Thomas.LOC.gov
(Note: Sources hyper linked in text are not listed directly above and are for the reader’s easy access to information in the context of this writing, but not recommended for thorough study.)
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