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Fidelity to the Constitution in the First 150 Years

We tend to think that the earliest interpretations of the Constitution must be very carefully matched with the text of the document. But is that true? Professor Gary Lawson suggests that there were significant gaps between what the Constitution authorized and how Congress and the Courts utilized it. However, Professor Lawson also argues that all parties were careful to claim that they were acting in accordance with the Constitution, rather than ignoring it as irrelevant. https://youtube.com/watch?v=GqQj8PeHdFI


If you look at what people actually did over 150 years, and you match it to what a sober, objective assessment of the Constitution of 1788 actually prescribes, you're going to find a lot of space in between those two. It's actually a fairly easy task to pick apart large chunks of what people did over that 150 period from 1788 up to the New Deal, and say, "Here's what the Constitution of 1788 said. Here's what they did. It obviously doesn't match." To some extent, you can even say with some justification that people weren't even trying. Let me just give one especially noteworthy example. The very first statute enacted by the very first Congress. What they did is the Constitution requires that everybody swear an oath. It prescribes the exact form of everybody who is a government official, swear an oath to the Constitution. Prescribes the exact words of the oath for the President, but not for everybody else. So Congress's first order of business was to prescribe the precise words of the oath that everybody had to take to support the constitution, and they did that for Congress. They did that for executive officials. They also tried to prescribe the form of the oath for state officials. Now you can generate a power of Congress to prescribe the form of oath for federal officials from the necessary and proper clause. State officials will have to swear an oath of some kind, adequate to support the Constitution before they can act. But Congress has no business telling them what the words have to be. So the idea that everybody was all gung-ho, let's make sure that we follow this Constitution, that went down the drain the very first time Congress acted, literally the first time Congress acted. So it's possible to take all of that together and say, well obviously they weren't really serious about using originalism as a decision method for all this time. Here's the other side of that though. Almost never did people openly say, "Urgh, stuff the Constitution, forget that." Almost always they tried to couch what they were doing in the language of applying the actual Constitution of 1788, even one of the most ridiculous, stupid, wildly unoriginalist decisions ever rendered in the history of the planet. Dred Scott versus Sanford, when the majority is just making crap up all over the place, they don't say, "Oh, by the way, we're making crap up because we don't care about this Constitution thing from 1788." No, they couch what they're doing in the language of the Constitution. What that suggests is that there is at least within the legal culture, a norm that that's what you're supposed to be doing. Even if you aren't really doing it. Even if we're winking at you while we know that you aren't doing it, we kind of get that that's what we're supposed to be doing. We feel a little bad about not doing it, but I think that's the best account of the first 150 years. No, people didn't do it, but it was honored in the breach. That is, breaching but honoring at the same time.

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