The Meaning of Words and Phrases in the Constitution
Also see “Original Intent” • English Common Law • Centrality of the Declaration of Independence • Preamble: Strict Rule of Interpretation • Bill of Rights: “further declaratory and restrictive clauses”
- The ‘technical’ meaning word or phrase is the meaning of the law gives to it, which often may be narrower, and almost always more precise, then the meaning given to it by persons generally.
It is sometimes said that “[t]he Constitution was written to be understood by the voters; it’s words or phrases were used in their normal and ordinary as distinguished from technical meaning.” (footnote 1) This view, however, is somewhat misleading. For the Constitution must be interpreted “in such a manner as consistently with the words, shall fully and completely effectuate the whole objects of it. . . . No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends, when another construction, equally according to the words and sense thereof, will enforce and protect them.” (footnote 2) and to construe the Constitution to “enforce and protect” its “obvious ends,” one must often distinguish between the technical meaning of its words and phrases, and their full dictionary meanings, and employ the former to the exclusion of the latter.
The “technical” meaning word or phrase is the meaning of the law gives to it, which often may be narrower, and almost always more precise, then the meaning given to it by persons generally. When the issue is the interpretation of a specifically legal document—no document could be more specifically legal than “the supreme law of the land” itself (footnote 3)—the technical meanings of its words and phrases constitute their common meanings, because:
(i) it is the commonality of their legal meanings within the legal profession that qualifies those meanings as their technical meanings; and
(ii) the law presumes that every man (lawyer or not) knows the law, particularly if he is among WE THE PEOPLE who originally did, and then constitutionally “do ordain and establish this Constitution for the United States of America.” (footnote 4)
In the late 1700s, WE THE PEOPLE drew these technical meanings from the law of England, the Colonies, and the independent States. (footnote 5) Later amendments to their technical meanings from the law as it had developed until then.
Prescinding from the technical meanings of its words and phrases would render much of the Constitution unintelligible were so plastic is to be a “law” in name only. For examples: The word “dollars” the Constitution (footnote 6) refers, not to anything that politicians were judges might fancifully call a “dollar,” but uniquely to the Spanish milled dollar adopted as America’s monetary unit by the Continental Congress before the Constitution was drafted. (footnote 7) the power of the President “pardon” (footnote 8) takes in many of the prerogatives of the English King in that regard. (footnote 9) “freedom of speech” in the First Amendment (footnote 10) does not protect defamation or obscenity—not because they cannot be forms of “speech” (as by dictionary definitions they surely can”, but because common law always held them legally actionable, and therefore not part of “[t]he freedom of speech.” the words “jury” in the sixth amendment (footnote 11) and “trial by jury” in the seventh (footnote 12) were placed in the Constitution . . . with reference to the meaning affixed to them in the law as it was in this country and in England the adoption of the Constitution.” (footnote 13) And the words “privileges and immunities” were added in Section 1 of the Fourteenth Amendment to reverse the Supreme Court’s earlier erroneous decisions in Barron v. Baltimore (footnote 14) and Scott v. Sandford (footnote 15) (among other reasons). (footnote 16) Thus, to understand these terms—and many others, such as “Bill of Attainder,” (footnote 17) “Bills of Credit,” (footnote 18) “Militia,” (footnote 19) and “religious Test” (footnote 20)—any American in the late 1700s, or thereafter, would have had (and now has) to read the Constitution’s verbiage in its technical sense. Indeed, focusing on the technical meanings of its words and phrases is the only way in which to interpret the Constitution with objectivity, accuracy, and anything approaching certainty. (footnote 21)
1.) United States v. Sprague, 280 U.S. 716, 731 (1931).
2.) Prigg v. Pennsylvania, 41 U.S (16 Pet.) 539, 612 (1842).
3.) U.S. Const. art. VI, cl. 2.
4.) U.S. Const. preamble.
5.) See e.g., United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818).
6.) U.S. Const. art. I, § 9, cl. 1 (“Tax or duty may be imposed . . . not exceeding ten dollars”); amend, VII (“where the value in controversy shall exceed twenty dollars”).
7.) See E. Vieira, Jr., Pieces of Eight: Monetary Powers and Disabilities of the United States Constitution (2d rev. ed. 2002), at 134–41, 183–99.
8.) U.S. Const. art. II, § 2, cl. 1 (the President “shall have Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment”).
9.) See Ex part Wells, 59 U.S. (18 How.) 307, 309–11 (1856).
10.) U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech”).
11.) U.S. Const. amend. VI (“the accused shall enjoy the right to a speedy and public trial, by an impartial jury”).
12.) U.S. Const. amend. VII (“the right of trial by jury shall be preserved”).
13.) Thompson v. Utah, 170 U.S. 343, 344 (1898).
14.) 32 U.S. (7 Pet.) 243 (1833).
15.) 60 U.S. (19 How.) 393 (1857).
16.) See 2 W. Crosskey, Politics and the Constitution in the History of the United States (1953), chs. XXX and XXXI.
17.) U.S. Const. art. I, § 9, cl. 2, and § 10, cl.1.
18.) U.S. Const. art. I, § 10, cl. 1.
19.) U.S. Const. art. I, § 8, cls. 15-16, and amend. II.
20.) U.S. Const. art. VI, cl. 3.
21.) See E. Vieira, Jr., How to Dethrone the Imperial Judiciary (San Antonio, Texas: Vision Forum Ministries, 2004, page 74-77.
The Meaning of Words and Phrases in the Constitution
The meanings of words in the Constitution do not change from their original intent simply because some novel theory of interpretation has fortuitously become fashionable among intellectuals and politicians. For this would make ever-changing notions of construction—and their authors, exponents, and political beneficiaries—superior to the actual terms of the Constitution as the controlling body of law. The Constitution would then become merely a mirror for the protean fads that catch the fancy of politicians, the legal intelligentsia, and special interest groups, rather than a statement of powers and disabilities of government upon which a society existing across generations could rely for continuity, coherence, and clarity. (footnote 7)
Perhaps surprisingly (given the prevalence of the “living” Constitution in judicial opinions of the late 1900s), the Supreme Court has traditionally recognized that the Framers of the Constitution, writing for WE THE PEOPLE, employed words in “their natural sense”; (footnote 8) in their “natural signification”; (footnote 9) with their “natural meaning”; (footnote 10) in their “normal and ordinary* * * meaning”; (footnote 11) with the meaning they had “in common use”, (footnote 12) in “common parlance”, (footnote 13) or in “ordinary acceptation”; (footnote 14) in a “sense most obvious to * * * common understanding”; (footnote 15) and, generally, in their common sense. (footnote 16) Not, however, the words’ peculiar meaning today, if that differs from their usual meaning from the late 1700s. Rather, the most straightforward construction of the Constitution looks to “[w]hat * * * those who framed and adopted it understood [its] terms to designate and include” (footnote 17)—“that sense in which [the words were] generally used by those for whom the instrument was intended”, (footnote 18) the common understanding “when the Constitution was adopted”, (footnote 19) “the common parlance of the times in which the Constitution was written” (footnote 20) or “according to their accepted meaning in that day”, (footnote 21) Note the emphasis on “common” parlance and understanding—not the gnosis or intuition of a judicial or academic elite. (footnote 22)
- As is often the case with language, over the course of time the meaning of words or terms can change. This does not change the meaning of the Constitution.
To be sure, “in the course of time, as is often the case with language, the meaning of the words or terms is changed”; but, even so the meaning of the Constition does not change pari passu.” (footnote 1) The “meaning [of the constitutional provisions] is changeless; * * * only their application * * * is extensible”. (footnote 2) “What the Constitution meant when adopted it still means for the purpose of interpretation”, (footnote 3) notwithstanding swings in public opinion at home or abroad, (footnote 4) changes in the “ebb and flow of economic events”, (footnote 5) or shifts in public policy. (footnote 6) For “‘[p]olicy and humanity’are dangerous guides in the discussion of a legal proposition. He who follows them is far apt to bring back the means of error and delusion.” (footnote 7)
1.) See N. Chipman, Principles of Government : A Treatise on Free Institutions (1833), at 254.
2.) Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 451 (1934) (Sutherland, J., dissenting).
3.) Smiley v. Holm, 285 U.S. 355, 365 (1932). Accord, South Carolina v. United States, 199 U.S. 437, 448-49 (1905).
4.) Scott v. Sanford, 60 U.S. (19 How.) 383, 426 (1857).
5.) West Coast Hotel Co. v. Parrish, 300 U.S. 379, 402 (1937) (Sutherland, J., dissenting).
6.) Patton v. United States, 281 U.S. 276, 306 (1930).
7.) Edwards v. Kearzey, 96 U.S. 595, 604 (1878).
- While the Constitution remains unaltered, it must be construed now as it was understood at the time of its adoption and not the mere reflex or popular opinion of the day.
“[W]hile [the Constitution] remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only with the same words, but with the same meaning and intent with which it spoke when when it came from the hands of its framers, and was voted on and adopted by the people of the United States. And any other rule of construction would abrogate the judicial character of [the Supreme Court], and make it the mere reflex of the popular opinion or passion of the day.” (footnote 1)
1.) Scott v. Sanford, 60 U.S. (19 How.) 383, 426 (1857).
- The law as expounded for centuries cannot be set aside or disregarded because some of the judges are now of a different opinion from those who a century ago, followed it in framing our Constitution.
This includes the specifically legal meaning words had in that day “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” (footnote 1) “The law as expounded for centuries cannot be set aside or disregarded because some of the judges are now of a different opinion from those who a century ago, followed it in framing our Constitution.” (footnote 2) For “[i]f we are at liberty to give old words new meanings * * *, there is no power which may not * * * be conferred upon the general government”. (footnote 3)
1.) Mattox v. United States, 156 U.S. 237, 243 (1895).
2.) Pollock v. Farmers’ Loan & Trust Co., 157 U.S.429, 591 (1859) (separate opinion of Field, J.) (referring to antient English common law).
3.) Passenger Cases, 48 U.S. (7 How.) 283, 478 (1849).
No constitution can limit the powers it delegates if the definitions of its terms may deviate from their original meanings at the behest of the very persons whose powers are to be limited.
James Madison recognized already in 1824, the Constitution was then undergoing a “metamorphosis” through reinterpretations of its language alien to WE THE PEOPLE’S understanding. (footnote 23)
“Why not assume that the framers of the Constitution, and the people who voted it into existence, meant exactly what it says?” (footnote 24) Indeed, is not the opposite assumption—that the document might mean something other than what it says—to attribute to its authors either lunacy or fraud?! (footnote 25)
1.) See N. Chipman, Principles of Government: a Treatise on Free Institutions (1833), at 254.
2.) Home Building & Loan Association v. Blaisdell, 290 U. S. 398, 451 (1934) (Sutherland, J., dissenting).
3.) Smiley v. Holm, 280 U.S. 353, 365 (1932). Accord, South Carolina v. United States, 190 U.S. 437, 448 –49 (1905).
4.) Scott v. Sandford, 60 U.S. (19 How.) 383, 426 (1857).
5.) West Coast Hotel Co. v. Parrish, 300 U.S. 379, forms into (1937) (Sutherland, J., dissenting).
6.) Patton v. United States, 281 U.S. 276, 306 (1930). For “’[p]olicy and humanity’ dangerous guides in the discussion of legal proposition. He follows them far is apt to bring back the means of error and delusion.” Edwards v. Kearzy, 96 U.S. 595, 604 (1878).
7.) Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution, (Chicago, Illinois R R Donnelly & Sons ., Inc., GoldMoney Foundation Special Edition  of the Second Revised Edition, 2002) by Dr. Edwin Vieira, Jr., Volume I, page 30.
8.) Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824); McPherson v. Blacker, 146 U.S. 1, 27 (1892); South Carolina v. United States, 199 U.S. 437, 449 (1905).
9.) Lake County Commissioners v. Rollins, 130 U.S. 662, 670 (1889).
10.) Wright v. United States, 302 U.S. 583, 588 (1938).
11.) United States v. Sprague, 282 U.S. 716, 731 (1931); Green v. United States , 356 U.S. 165, 210 (1958) (Black, J., dissenting).
12.) Tennessee v. Whitworth, 117 U.S. 129, 147 (1886).
13.) United States v. South-Eastern Underwriters Association, 322 U.S. 533, 539 (1944).
14.) Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 328c (1837) (Baldwin, J., concurring).
15.) Eisner v. Macomber, 252 U.S. 189, 219-20 (1920) (Holmes, J., dissenting). Accord, Ohio ex rel. Popovicu v. Agler, 280 U.S. 379, 383-384 (1930).
16.) 1 J. Story, Commentaries on the Constitution of the United States (5th ed. 1891), § 45, at 345.
17.) Pollock v. Farmers’ Loan & Trust Co., 157 U.S.429, 558 (1859).
18.) Ogden v. Sanders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall C.J., dissenting).
19.) Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930); Eisner v. Macomber, 252 U.S. 189, 219-220 (1920) (Holmes, J., dissenting).
20.) United States v. South-Eastern Underwriters Association, 322 U.S.533, 539 (1944). Accord, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824).
21.) Scott v. Sanford, 60 U.S. (19 How.) 393, 418 (1857). See generally e.g., tenBrock, “Use by the United Sates Supreme Court of Extrinsic Aids in Constitutional Construction: the Intent Theory of Constitutional Construction”, 27 California L. Rev. 399 (1939); Powell, “The Original Understanding of Original Intent”, 98 Harvard L. Rev. 885 (1985).
22.) Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution, (Chicago, Illinois R R Donnelly & Sons ., Inc., GoldMoney Foundation Special Edition  of the Second Revised Edition, 2002) by Dr. Edwin Vieira, Jr., Volume I, page 30.
23.) See 3 The Records of the Federal Convention of 1787 (M. Farrand ed. 1966), at 464.
24.) Lake County Commissioners v. Rollins, 130 U.S. 662, 670 (1889).
25.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 32.