Professor Natelson’s August 29 essay is a valiant attempt to do the impossible. He tries to convince us that the “Founders’ Originalism” is not what the Founders actually did but what he thinks they should have done.

Hylton v. United States (1796) is the first case in which the Supreme Court considered the constitutionality of a federal statute. It was a test case not only for the limits of the federal taxing power, but also for the notion of judicial review. So many members of the House and Senate were in attendance for the judicial proceedings that Congress struggled to get a quorum that day. Alexander Hamilton, a delegate to the Constitutional Convention (and thus a “Framer”), had drafted the carriage tax law, and made a three-hour argument on behalf of its constitutionality.

All four of the justices who participated in the decision were “Founders,” as Professor Natelson has defined the term. Two of the justices, James Wilson and William Paterson, were Framers, and the other two, Samuel Chase and James Iredell, had been delegates to their states’ ratifying conventions (as had Wilson). Whatever approach they took to constitutional interpretation was, literally, the “Founders’ Originalism.”

The justices heard persuasive evidence that the key word, “excises” (as opposed to direct taxes), had multiple, conflicting definitions. They resolved this linguistic dilemma by seeking, in Iredell’s words, “what the Framers of the Constitution” contemplated, or what Paterson said was “obviously the intention” of the Framers. Paterson, as a Framer, spoke from personal experience about the Convention’s debates and compromises.

That is the Founder’s Originalism. As founding-era lawyers had learned from Blackstone, interpretation involves discerning the lawmaker’s “intention at the time when the law was made.”

Nevertheless, Professor Natelson slams the Founders’ actual approach to originalism in Hylton as “worse than useless.” He agrees that the goal of interpretation should be “discerning the intent of the makers,” but the Court got it all wrong. The justices should have known that the ratifiers, not the Framers, were the real lawmakers. The delegates to the Convention—where the constitutional provisions were drafted, debated, and ultimately decided—were, in Natelson’s view, no different than the “scrivener of a will” or a “lawyer in the legislative counsel’s office.”

The scrivener analogy does not work for three reasons. First, as Oxford’s Richard Ekins has recently reminded us in The Nature of Legislative Intent, lawmaking is based on a reasoning process that concludes in a particular ends-means choice, or what is sometimes described as crafting a remedy for the mischief in question. Scriveners do not come up with the rationale for including the provisions in a will, nor do lawyers in a legislative counsel’s office make ends-means choices. For the Constitution, the Framers, not the ratifiers, did all those essential law-making acts.

Second, even Professor Natelson admits that, for statutes, the legislators constitute the “lawmakers.” But to be technically accurate, the legislators do not generally make a bill into law. The final law-making act is typically either a presidential signature, or, in the England of his favorite commentator Edmund Plowden, Royal Assent. He is right, however, that the legislators are the lawmakers when it comes to identifying the lawmaker’s intent. They did the critical thinking, debating, and compromising that led to the specific ends-means decisions, just as the constitutional Framers did at the Convention.

Third, what is actually going on here is that Professor Natelson has fallen into a clever trap set by the Framers themselves. They used the concept of ratification, which they made up, to disguise the fact that they, by themselves, were creating an entirely new constitutional order.

The charge to the Constitutional Convention said that its “sole and express purpose” was to revise the Articles of Confederation, a body of laws which could only be amended with the consent of all the state legislatures. But the Convention came up with a completely new governing document and did not submit it to the legislatures. Instead, the Framers bootstrapped their way into a brand new Constitution by inventing the notion of ratification by only nine state conventions.

The Articles of Confederation were dispensed with, and the process of ratification emerged, solely on the Framers’ say-so. Ratification is one of legal history’s great misdirects, a classic Wizard of Oz-ian “pay no attention to the Framers behind the Article VII curtain.” It parallels the Royal Assent process with which Founders were familiar. Cleverly ducking the question of whether the states or “We the People” were sovereign, the Framers set it up so that the novel concept of ratifying conventions (neither state legislatures nor a plebiscite) assented to the Constitution becoming law.

In the end, it is perhaps ironic that two of the relatively few intentionalist constitutional scholars these days would manage to disagree about what the intentions were and whose intentions mattered in a case filled with Framers and Founders. These are critical issues, and they are hard to resolve within even Law & Liberty’s generous word limits. The many (I hope) readers of these essays can find more fascinating insights into constitutional originalism, the limits on federal taxation, the long and winding history of legal interpretation, and so on in our books on the subject: my The Hollow Core of Constitutional Theory: Why We Need the Framers, and his The Original Constitution: What It Actually Said and Meant.