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instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture, or where it may include in its general terms more or less than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the Constitution, the antecedent situation of the country and its institutions, the existence and operations of the State governments, the powers and operations of the confederation, in short, all the circumstances which had a tendency to produce or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history and contemporary interpretation to aid us in just conclusions.1

§ 405 a. It will probably be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.2

1 The value of contemporary interpretation is much insisted on by the Supreme Court, in Stuart v. Laird, 2 Cranch, 299, 309, in Martin v. Hunter, 1 Wheat. R. 304, and in Cohens v. Virginia, 6 Wheat. R. 264, 418 to 421. There are several instances, however, in which the contemporary interpretations by some of the most distinguished founders of the Constitution have been overruled. One of the most striking is to be found in the decision of the Supreme Court of the suability of a State by any citizen of another State (Chisholm v. Georgia, 2 Dall. 419); and another in the decision by the executive and the Senate, that the consent of the latter is not necessary to remov al from office, although it is for appointments. The Federalist, No. 77.

2 Per Mr. Justice Story in Prigg v. The Commonwealth of Pennsylvania, 16 Peters's S. C. R. 210.

§ 406. It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man or body of men must manifestly be open to much observation. The Constitution was adopted by the people of the United States, and it was submitted to the whole upon a just survey of its provisions as they stood in the text itself. In different States and in different conventions, different and very opposite objections are known to have prevailed, and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different State conventions in ratifying the Constitution gave the same uniform interpretation to its language, or that even in a single State convention the same reasoning prevailed with a majority, much less with the whole of the supporters of it. In the interpretation of a State statute, no man is insensible of the extreme danger of resorting to the opinions of those who framed it or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition which most favored their present views. Others may have seen lurking beneath its text what commended it to their judgment against even present interests. Some may have interpreted its language strictly and closely ; others, from a different habit of thinking, may have given it a large and liberal meaning. It is not to be presumed that, even in the convention which framed the Constitution, from the causes above mentioned and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. The known diversity of construction of different parts of it, as well as of the mass of its powers in the different State conventions, the total silence upon many objections which have since been started, and the strong reliance upon others which have since been universally abandoned, add weight to these sug

gestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and à fortiori, to any commentary since made, under a very different posture of feeling and opinion, an authority which should operate as an absolute limit upon the text, or should supersede its natural and just interpretation.

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§ 407. Contemporary construction is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text, it can never fritter away its obvious sense, it can never narrow down its true limitations, it can never enlarge its natural boundaries.1 We shall have { 1 Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the Constitution. The first is, "The capital and leading object of the Constitution was, to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed." 4 Jefferson's Corresp. 373; Id. 391, 392; Id. 396. Now the very theory on which this canon is founded is contradicted by the provisions of the Constitution itself. In many instances authorities and powers are given which respect citizens of the respective States without reference to foreigners or the citizens of other States. 4 Jefferson's Corresp. 391, 392, 396. But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought at all events to be construed according to its fair intent and objects, as disclosed in its language. What sort of a rule is that, which, without regard to the intent or objects of a particular clause, insists that it shall, if possible, (not if reasonable,) be construed in favor of the States, simply because it respects their citizens? The second canon is, “On every question of construction [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Now, who does not see the utter looseness and incoherence of this canon? How are we to know what was thought of particular clauses of the Constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given different persons held different doctrines. Whose is to prevail? Besides, of all the State conventions, the debates of five only are preserved, and these very imperfectly. What is to be done as to the other eight States? What is to be done as to the eleven new States, which have come into the Union under constructions which have been established against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton and Mr. Madison and Mr. Jay, the expounders in the Federalist, to be followed? Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply

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abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the Constitution, how many loose interpretations and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.

§ 408. And, after all, the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation that belongs to the latter. They are decided upon solemn argument, pro re natà upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the because they were actors in those days (constituting not one in a thousand of those who were called to deliberate upon the Constitution, and not one in ten thousand of those who were in favor of or against it, among the people)? Or are we to be governed by the opinion of those who constituted a majority of those who were called to act on that occasion, either as framers of or voters upon the Constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular State, or of all the United States? If so, how are we to ascertain what that sense was? Is the sense of the Constitution to be ascertained, not by its own text, but by the "probable meaning " to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesman, or the jealous exaggerations of others? Is the Constitution of the United States to be the only instrument which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a State legislature by endeavoring to find out, from private sources, the objects and opinions of every member, how every one thought, what he wished, how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to "the probable meaning" of the framers or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the "probable meaning " of persons whom they never knew, and whose opinions and means of information may be no better than their The people adopted the Constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied that the President could remove a public officer without the consent of the Senate. The first Congress affirmed his right by a mere majority. Which is to be followed?


absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step! 1

§ 409. But to return to the rules of interpretation arising ex directo from the text of the Constitution. And first the rules to be drawn from the nature of the instrument. 1. It is to be construed as a frame or fundamental law of government, established by the PEOPLE of the United States, according to their own free pleasure and sovereign will. In this respect it is in no wise distinguishable from the constitutions of the State governments. Each of them is established by the people for their own purposes, and each is founded on their supreme authority. The powers

which are conferred, the restrictions which are imposed, the authorities which are exercised, the organization and distribution thereof which are provided, are in each case for the same object, the common benefit of the governed, and not for the profit or dignity of the rulers.

§ 410. And yet it has been a very common mode of interpretation to insist upon a diversity of rules in construing the State constitutions and that of the general government. Thus, in the Commentaries of Mr. Tucker upon Blackstone, we find it laid down, as if it were an incontrovertible doctrine in regard to the Constitution of the United States, that "as federal, it is to be construed strictly, in all cases, where the antecedent rights of a State may be drawn in question." As a social compact, it ought likewise "to receive the same strict construction, wherever the right of personal liberty or of personal security or of private property may become the object of dispute; because every person, whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society, to whose regulations he had submitted himself, and under whose authority and protection

1 [That a practical exposition of the Constitution long acquiesced in will not be departed from, see Stewart v. Laird, 1 Cranch, 299; McCulloch v. Maryland, 4 Wheat. 316; Briscoe v. Bank of Kentucky, 11 Pet. 257; West River Bridge Co. v. Dix, 6 How. 507; Bank of U. S. v. Halstead, 10 Wheat. 63; Ogden v. Saunders, 12 Wheat. 290; Union Ins. Co. v. Hoge, 21 How. 66; United States v. Gilmore, 8 Wal. 330; Hughes v. Hughes, 4 T. B. Monr. 42; Burgess v. Pue, 2 Gill, 11; Coutant v. People, 11 Wend. 511; Norris v. Clymer, 2 Penn. St. 277; Pike v. Megoun, 44 Mo. 499; Britton v. Ferry, 14 Mich. 66; State v. Parkinson, 5 Nev. 15; Hedgecote v. Davis, 64 N. C. 652; Plummer v. Plummer, 37 Miss. 185; Chambers v. Fisk, 22 Texas, 504.]

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