Credits: This article arose out of conversations with constitutional commentator Gary Porter.
After I wrote my article on the meaning of the constitutional term “natural born,” some people asked me why the English version of that term applied rather than versions prevailing in other countries.
The reason is that when the drafters of the original Constitution and Bill of Rights employed legal phrases, they used them with the meaning given to them by the English legal and political system.
England was the dominant partner in the British partnership of England and Scotland. Most of the colonies that became the first 13 states had been founded by Englishmen, with some involvement by the Scots. By the time of Independence, all 13 colonies had been associated with Great Britain for over a century. Before the troubles that estranged Britain the colonies, they were all part of the same empire. To most Americans, England was not a foreign country. England was “home.”
All the colonies adopted English law and English-style political institutions. The fundamental “constitutional” statutes of England, such as Magna Carta, were law in America. Legislative and judicial procedures were modeled on those of England. Executive powers derived largely from English models—the Crown and, to an even greater extent, the royal colonial governorships. American courts applied English judicial rulings and sometimes ordinary parliamentary enactments.
Nearly all of the Constitution’s framers and leading ratifiers had worked within this English-style political and legal system. Most had served in the colonial and state legislatures. Some, such as Ben Franklin, had worked within the English political system itself.
The majority of the framers and ratifiers were, or had been, practicing lawyers. The older generation of Founder-lawyers had learned their legal doctrine from Edward Coke’s Institutes of the Lawes [sic] of England. The younger generation relied on Blackstone’s Commentaries on the Laws of England. In fact, a fair number of leading Founders and ratifiers, such as John Dickinson, had received their legal training in London’s Inns of Court. Still others, such as James Wilson (a Scottish immigrant), had learned their law from those so trained.
It is sometimes said that the Constitution was written in ordinary language. This is a half-truth. To the extent it was so written, it was composed in the ordinary language of the time. Because the general public was more knowledgeable about law and political institutions than it is today, phrases that to us are obscure would have been widely understood. It is also true, however, that the framers added many legal and political phrases that only lawyers and the politically active would have understood fully. During the ratification debates, advocates of the Constitution took care to explain these phrases to the general public.
This is hardly surprising that the Constitution would contain technical legal terms. It is the “supreme Law of the Land.” It is a legal and political document. It is not a newspaper, a tennis handbook, a cookbook, or Facebook.
Many of the Constitution’s political and legal expressions are terms of art. A term of art is a word or phrase with a specialized meaning that may be different from the ordinary meaning. For example, the word “necessary” in the Necessary and Proper Clause (Article I, Section 8, Clause 18) means “incidental,” which in turn is a term of art signifying, “something subordinate to the main concept and attached to that concept by custom or by reasonable necessity.” In most cases, the meanings of these terms of art had been developed over centuries—through parliamentary usage and, more importantly, the workings of the legal system.
The meaning of some constitutional terms was influenced by the way English jurisprudence divided the law into categories. Consider the Constitution’s phrase “to regulate Commerce.” Many people today think that means “regulate the entire economy.” If that were so, however, there would be no need for the Constitution to list separately other aspects of economic regulation. For example, in addition to granting Congress power to regulate commerce, the Constitution also grants Congress authority to pass bankruptcy laws. One reason is that in Anglo-American jurisprudence, commerce was a separate legal category from bankruptcy. “To regulate Commerce” referred to the branch of law that governed mercantile trade and certain associated activities, such as navigation. “Bankruptcy” was the branch of law that addressed the resolution of debts by people and businesses that couldn’t pay them. These were not only different bodies of law; they were administered primarily by different courts.
Some provisions in the Constitution were responses to well-understood legal rules not explicitly mentioned. The Ninth Amendment is an example. It was designed to overrule for part of the Constitution a specific English legal maxim (Designatio unius est expressio alterius).
A great deal of misunderstanding about the Constitution, particularly during the last century, has arisen from ignorance of our English political and legal heritage. Our education system fosters this ignorance by playing down the dominant sources of our culture in favor of traditions with only peripheral influence. (This is a result of the “diversity” babble that infests our schools and colleges.) My book, The Original Constitution: What It Actually Said and Meant, explains how the English political and legal heritage helped shape the Constitution’s meaning.
The following words and phrases are among the political and legal terms of art appearing in the original Constitution, as amended by the Bill of Rights. Most of these terms are explained in my book, and some in the section of this website called “Constitutional Nuggets.”
* legislative Powers
* direct Taxes
* Executive Authority
* “Vacancies happen”/ “Vacancies that may happen”
* pro tempore
* “oath or affirmation”
* Authority of the United States
* general Welfare
* regulate . . . Commerce
* regulate the value thereof
* Law of Nations
* Letters of Marque and Reprisal
* necessary and proper
* the writ of habeas corpus
* Bill of Attainder
* ex post facto Law
* Law impairing the Obligation of Contracts
* Regulation of Commerce or Revenue
* for the Use of/public use
* executive Power
* natural born
* Advice and Consent
* Recess of the Senate
* high Crimes and Misdemeanors
* public Ministers
* original Jurisdiction
* appellate Jurisdiction
* trial . . . by Jury
* giving them Aid and Comfort
* Attainder of Treason
* Corruption of Blood
* Privileges and Immunities
* Republican Form of Government
* religious Test
* establishment of religion
* the freedom of speech
* the freedom . . . of the press
* probable cause
* Grand Jury
* twice put in jeopardy
* due process of law
* common law
* excessive bail . . . fines