fbpx

The German and Dutch Founding-Era Translations of the Constitution

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

But there is a downside to these translations.  For modern English speakers to understand them, they must rely on people who have knowledge of 18th century German and Dutch.  The question is why modern people would have more knowledge of 18th century German and Dutch than of 18th century English.  While we would probably not, still this information is one more data point as to the meaning of the Constitution.

One interesting piece of information is that the German and Dutch translations seem to confirm the narrow understanding of the Commerce Power – that is, the commerce power extended to buying and selling rather than to all productive activities undertaken for profit.  The German and Dutch translations both suggest this meaning.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 23, 2015 at 11:00:37 am

Also, the translations are in the 18th German and Dutch as written and spoken in Pennsylvania and New York, not Germany and the Netherlands. The speakers of those languages in the US had been here for generations by 1788, and the languages as used here had no doubt by then diverged from the languages as used in Europe.

read full comment
Image of djf
djf
on February 23, 2015 at 11:01:48 am

" that is, the commerce power extended to buying and selling rather than to all productive activities undertaken for profit"

Wasn't this a fairly typical understanding at the time? Those poor dolts - only in the 20th century, after much learning, did we come to understand that raising an extra bushel of corn on your own farm to feed your own family was a proper area of government action under commerce clause. What astounding progress we have made.

would be interested in seeing what other clauses "meant" to the people of the time based on these translations.
Will you be providing this?

read full comment
Image of gabe
gabe
on February 23, 2015 at 13:48:37 pm

The German version of the Bill of Rights is also available.

http://constitution.org/cons/SSRN-id2486282.pdf

Here is the Due Process Clause: "auch soll niemand ohne gehorigen gesezlichen prozess seines lebens, freiheit oder eigenthums beraubt werden"

Gehorigen=due

gesezlichen=legally acceptable

prozess=process

This is entirely consistent with the well-established eighteenth-century meaning established by the King's Bench in England:

"[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority."

Regina v. Paty, 92 Eng. Rep. 232, 234 (1704) reprinted in Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas: In the Reigns of the Late King William, Queen Anne, King George the First, and King George the Second, Volume 2, page 1105, 1108 (1792).

read full comment
Image of Andrew Hyman
Andrew Hyman
on February 23, 2015 at 16:39:20 pm

Thus giving the lie to the Administrative States' claim that you get "whatever process is due" and be happy with it!

read full comment
Image of gabe
gabe
on February 23, 2015 at 18:43:44 pm

The root word "gehorig" is somewhat ambiguous.

On the one hand it can mean proper, suitable, fitting, becoming. On the other hand, it can mean belonging, or the quality of being a part of.

read full comment
Image of Andrew Hyman
Andrew Hyman
on February 23, 2015 at 19:41:52 pm

Thanks!

It has made me think that perhaps we would be best to stick to English and as a consequence seek meaning in the words and decisions of countless unnamed English Judges who in their efforts to eliminate the Star Chamber (and similar extra / supra legal bodies) and to sustain the "ancient liberties" of the Englishman appear to have determined that due process meant under the law of the land -as you show, ALL the law - which would include jury trial, confrontation rights, etc., etc.

This German / dutch thing may be a blind alley - perhaps worse. Can one imagine some future legal historian seeking meaning of current US Constitution by referencing what the folks in Brussels or the United Nations had to say about it. -Yikes!!!!

read full comment
Image of gabe
gabe
on February 23, 2015 at 23:11:58 pm

Count me among the doubters. Legal terms of art always suffer in translation--even if the translators are actual lawyers and don't hack it up.

E.g., "gesezlich" does not mean "legally acceptable." It means something like "in accordance with (or mandated by) POSITIVE law." "Rechtmaessig" would better capture the meaning of "of law," I think. At least if the German terms back then carried the connotations that they carry now.

"Handelschaft" for "commerce" is even messier and, if anything, seems to cut the other way. It's not a word I've ever heard; the common word is "Handel" (without "schaft"). That CAN mean the exchange of goods and services. But it can also mean a business entity engaged in that pursuit ("Einzelhandel" means "retail business"), or (collectively) an occupational association or guild. So it's much broader than the meaning originalists want to pin on "commerce"--again, assuming Handelschaft back then was what Handel is now.

However this may be the Constitution reads WAY better in English. Glauben Sie mir.

read full comment
Image of Michael Greve
Michael Greve
on February 24, 2015 at 09:51:04 am

[…] The German and Dutch Founding-Era Translations of the Constitution […]

read full comment
Image of Conserva-rrific Liber-lennials | Freedom's Floodgates
Conserva-rrific Liber-lennials | Freedom's Floodgates
on February 25, 2015 at 13:16:35 pm

[…] The German and Dutch Founding-Era Translations of the Constitution […]

read full comment
Image of Lumpen Proletariat on Campus | Freedom's Floodgates
Lumpen Proletariat on Campus | Freedom's Floodgates
on March 02, 2015 at 09:14:10 am

[…] The German and Dutch Founding-Era Translations of the Constitution […]

read full comment
Image of The Political Thought of Walter Berns | Freedom's Floodgates
The Political Thought of Walter Berns | Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.