CONSTITUTIONAL TOUR-DE-FORCE

by James Craig Green


On Sunday, May 15, 2011, the Independence Institute held a Constitutional seminar in Lakewood, Colorado with presentations from its two expert legal scholars, David Kopel and Rob Natelson. A hundred people embarked on a breathtaking journey of the Constitution's origins and original meanings, as well as a history of important Supreme Court cases since its first ten Amendments (Bill of Rights) were ratifed in 1791. Before I report on the event in more detail however, let me introduce you to these two outstanding legal scholars:

ROB NATELSON served 23 years as a professor of law at the University of Montana, after 11 years of private practice in Colorado. He has spent much of his career researching the history and meaning of the U.S. Constitution. He is a Senior Fellow at the Independence Institute and Director of its Constitution Project. Unlike too many law professors, Rob considers the Constitution itself to be the primary authority on constitutional law, as opposed to Supreme Court cases that have ignored, reviled or re-interpreted it to fit philosophical or political agendas. His new book, The Original Constitution - What it Actually Said and Meant, is a brilliant presentation of the Constitution and its founding documents, as well as other writings from its founders, framers and ratifiers, including both Federalists and their critics, often referred to as anti-federalists.

DAVID KOPEL, Research Director for the Independence Institute, is also Director of its Second Amendment Project. He was the lead attorney on the team that successfully argued its pro-second amendment position in the Heller case before the U.S. Supreme Court. David has been a tireless advocate of human liberty for decades, as the author of ten books, hundreds of newspaper and magazine articles, and over three dozen scholarly journal articles. His recent book, Aiming for Liberty: The Past, Present and Future of Freedom and Self Defense, discusses the Washington, D.C. gun ban, modern American gun control, the agendas behind anti-gun legislation and the Heller decision. The book also covers the right to self defense from Judeo Christian principles, United Nations attempts on gun control and law enforcement abuses and solutions. You can see David's website HERE.

SEMINAR SYNOPSIS

Rob Natelson kicked off the afternoon with a 45-minute blast on the history and background of the Constitution, pointing out that most Americans at the time were very well versed in legal principles. They debated, rejected and then embraced the document, after holding out for the addition of a Bill of Rights. They had just fought an extended war with the most powerful army on the planet after declaring the dissolution of "political bands" that connected them to Great Britain. Naturally, their recent history was one of loyal British subjects, who expected all the legal rights of English citizens, going back to King Henry I, even before the Magna Carta in 1215. They met in taverns, town squares, public buildings and each others' homes to give this new, unprecedented document the greatest of scrutiny and consideration. Active criticisms of the new document were presented by many influential Americans, who thought the Constitution was a grave threat to liberty. The Constitution was adopted by the Constitutional Convention on September 17, 1787, which began the debate on its adoption. With encouragement from the persuasive Federalist Papers and other documents, the Constitution's first ten amendments (Bill of Rights) were ratified by the states on December 15, 1791. Rob says the original meaning of the Constitution can only be derived from this date backwards, not forward.

I later learned from Rob it is somewhat more complicated than this, depending on whether the subject is the unamended Constitution, or some early Supreme Court cases up to about 1796 that were uncontroversial. But, the idea seems to be not to confuse what people said after the fact with the document itself.

David Kopel picked up where Rob left off, taking us on a whirlwind tour of constitutional history since the 1791 ratification, including many important court cases that set legal precedents. Then, he proceeded to describe the modern progressive movement, beginning in about 1890. David explained four progressive constitutional amendments, including the 16th (income tax), 17th (direct election of senators), 18th (prohibition) and 19th (women's suffrage). Although the income tax was sold to the American people as a small tax on only the most wealthy, it has since escalated to its present level, which almost certainly would not have been approved in 1913. The 17th Amendment, which took 14 years of struggle between states and Congress, provided for the direct election of Senators to deal with the sluggishness of state legislatures, which even included delaying the election of Senators. The 18th Amendment, prohibition, was later repealeld by the 21st Amendment, but represented a cornerstone of the progressive platform of ever-larger government. Of course, the 19th Amendment, women's suffrage, corrected a long injustice by eliminating formal discrimination against half the population. Another byproduct of the progressive movement though, was its destructive re-interpretation of the 14th Amendment's provision of equal protection under the law. Later, the New Deal would become the crown jewell for progressives, including massive re-interpretation of the Constitution to allow unprecedented expansion of government power. David also discussed several New Deal decisions.

After their opening salvos, both Rob and David explained several other interesting pieces of history, including the Englishman Edmund Burke's observation that more Americans had read England's Blackstone Law Dictionary than Englishmen, for whom it was written. Overwhelming impressions I got from this presentation were 1) how incredibly knowledgeable and involved most Americans were in the mid to late 1700's, and 2) how destructive to the Constitution the Supreme Court and Congress were after it was ratified. As Rob pointed out in response to a question from an attorney, today's American law schools focus primarily on Supreme Court decisions, rather than the document itself. Rob also explained (here and in his book) why it was important for the President to be a natural born citizen - so he would be loyal to the traditions and principles of America.

Multiple discussions from a lengthy question and answer session followed, including topics such as whether the U.S. is a "Christian Nation" (Rob says no, but it was created as a theisitic nation, since the actual meaning of oaths of office was an oath to god). After the seminar, I asked Rob about the language in Article VI, which says no religious test is required to hold public office. Rob said this was clarified in the ratification debates to mean no test OTHER than the oath.

From my perspective as a layman student of the U.S. Constitution, I could not have been more impressed with David, Rob and the audience. Some people I met in the parking lot walking toward the building were from rural areas of Colorado, and there were many attorneys in attendance as well. When Mike Krause, Operations Director of the Independence Institute closed the event, he asked how many people would come to another such event, and bring two or three friends. Almost every hand went up, including mine.