The Constitution was created in a special legal environment. The Founders were raised with a particular educational canon. They also had certain common experiences. During the 19th century, important details about those matters began to slip away. Constitutional law forgot them.
In other words, information crucial to understanding 18th century words was lost during the 19thcentury. I call this phenomenon “The Great Forgetting.”
I stress that the mistakes from the Great Forgetting were mostly innocent, well-intentioned errors by people who lacked the interpretive tools needed to recreate the Constitution’s true meaning. The Great Forgetting mistakes were not comparable to the willful distortions of the Constitution rampant in the 20th and 21st centuries.
Still, the Great Forgetting’s consequences for constitutional thought were enormous. Popular misconceptions about the Constitution arose that in some instances remain influential. People think some ideas were the Founders’, when in fact those ideas were invented after all or most of the Founders had gone.
The leaders who wrote the Constitution and led the fight for ratification were born and raised in the British Empire. Most were lawyers trained in English jurisprudence and legal vocabulary. When Alexander Hamilton and James Wilson argued a case or wrote a document (like the Constitution), they used mostly English court decisions and British books. Even leading non-lawyers like James Madison and George Washington were well grounded in English legal concepts.
When the Founders assigned constitutional meaning they also were influenced by the history of Europe. They were particularly immersed in the heritage of ancient Greece and Rome, which formed the backbone of their education. They further considered the history of the British America, which they and their forefathers had lived through.
In the 19th century, however, Americans quite naturally decided that they wanted to be Americans. They did not want to be merely children of Britannia. Noah Webster wrote a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote histories from a strongly American point of view.
As the individual Founders died out, their personal memories were lost. They left many documents recording their memories, but often those documents were inaccessible. For example, James Madison’s notes of the Constitutional Convention were not published until after his death in 1836. Even when critical materials were available at places like Harvard and Columbia, they might be unavailable in Missouri, Ohio, or at the Supreme Court in Washington, D.C.
Consider just a few popular misconceptions and how the Great Forgetting made them possible:
* In the early 19th century, the idea arose that the Commerce Clause granted to Congress exclusive (rather than merely concurrent with the states) jurisdiction over interstate commerce. As I pointed out in Part II(C) of an article on the Commerce Clause as it pertains to Indian tribes, Madison’s convention notes disprove that idea. But those notes were not yet published. The footprints of this misconception can be traced today in the Supreme Court’s Dormant Commerce Clause and Indian Commerce Clause cases.
* Political actors in the 19th century promoted the claim that an Article V “convention for proposing amendments” is an”constitutional convention” that cannot be limited. No Founder would have believed that, because within the lifetime of Benjamin Franklin, there had been nearly 20 inter-colonial or interstate conventions confined to limited subjects. The claim of unlimitability survived because the Founders’ vast convention experience had been forgotten.
* Throughout the 19th century, many argued that Congress had no power to issue paper money, or at least no power to make paper legal tender. The records of the Constitutional Convention are ambiguous on the subject,but the ratification records and other contemporaneous documents are clear: Congress has both powers. However, in the 19th century the full ratification records were no longer readily available. As a result, the Supreme Court struggled for years over a question that should have been answered easily.
* During the 1840s, lawyers for political disputants spun the idea that in guaranteeing each state a “republican form of government,” the Constitution forbids states from using methods of direct democracy, such as initiatives and/or referenda. The argument is absurd to anyone familiar with 18th century word usage, or with the Founders’ immersion in the history of ancient Greece and Rome. But such things had been largely forgotten.
* In 1823, a Supreme Court justice writing a trial-level opinion without his fellow justices added some unnecessary musings about what he thought the Privileges and Immunities Clause of Article IV might mean. His language was not well considered: Not only were there internal inconsistencies, but the language showed unfamiliarity with the background of the Clause. Yet this passage became the basis for continuing misconceptions among commentators and judges who had never learned what “privilege” or “immunity” had meant in 18th century law.
We are fortunate today in that the Internet enables us to reconstruct 18th century meanings. But technology is not enough. We must beware of the results of the Great Forgetting. And we must equip ourselves with the history and language skills necessary to recreate the message the Founders intended to give us.