What is Constitutional


#1

Time and time again I’m drawn into an argument in which somebody claims that something is either Constitutional or Unconstitutional. In most cases a person will declare something “Unconstitutional” without being able to cite the origin in the Constitution. The next argument is usually that “The Supreme Court decided in plaintiff v. def… that…”. The problem with this is that rarely are these actually Constitutional arguments.

What most people fail to understand is that the Constitution is a contract. It is a contract signed by the original 13 States (and ratified by every state since) that created a federal government. The preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

does not carry the wight of law, it establishes the purpose for which the federal government was created.

The Articles following the Preamble establish the branches of the federal government, grant authority to the federal government, provide for changes in the document and place certain limits on state powers.

The Constitution is a charter. The problem is that it has been violated a thousand times over. Because it is such a sacred symbol, it became like the proverbial lamp post and the drunk. Instead of being used for illumination, it is often used for support which has brought it to ruin. Once it is deviated from it becomes increasinly useless and falls prey to its most obvious flaw, the Judicial branch.

The Supreme Court is the only body which has been able to successfully define its own authority which has caused most of the problems with our Country today. This was actually a concern of many of the founders because the Justices are accountable to no-one. As such they have invented powers the scope of which cannot be found within the very document used to create their posts.

Over the next several weeks I’m going to introduce threads regarding the Constitution because I think that as Republicans (which sadly doesn’t include me anymore) the focus should be returning the Constituiton to its original state, that of the governing law of the land. When we find that our government defines its own power without the consent of the governed we wind up with our current situation today… huge debt, shrinking freedom and unwinnable arguments that prevent us from achieving anything.

With that, I’d like to ask a few things for this discussion:

  1. How do you validate the Constitutionality of a law/stance?
  2. What does your research entail?
  3. Do you believe in “incorporation doctrine”?
  4. What is the worst SCOTUS ruling?
  5. If you are going to adhere to the Constitution can you do so when it does not benefit you as an individual?
  6. Is “Interpreting the Constitution” an authority granted to the SCOTUS?

Hopefully it will make a difference.

Mike


#2

I can’t answer any of these questions but if you ask some people, they’d say we failed the constitution. Take that into account that the demographics are also changing. Yes, but people may not be as blind as they seem.


#3
  1. Mostly, I only focus on the Bill of rights, which are short and simple, and I simply go by the wording.
  2. Again, by the wording of the amendments.
  3. I don’t know what this is. If it relates to the idea of the Constitution being a “living document,” then I vehemently oppose it.
  4. Probably Roe v Wade, although Dred Scott, Obamacare, and the eminent domain ruling of a few years ago are no prize, either.
  5. Hard to tell unless I’m tested.
  6. Not sure. I think so, but I understand Congress has a mechanism for overruling them.

#4

1-I check the enumerated powers of the specific branch and only those specifically listed apply.
2-Some basic discussions during the drafting of the passages if I can’t figure out the wording as is.
3-Yes, I think the 9th and 14th amendments cover that.
4-Marbury vs. Madison as it completely changed the role of the court and the size of the government for the rest of time.
5-Probably.
6-Only those powers specifically granted to the SCOTUS, which does not include judicial review.


#5

You ask, what is constitutional? Well, what you are asking for is a process to determine what is constitutional, and the most fundamental rule of that process is stated as follows:

***The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.***— numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.

And with regard to the language of the constitution see:

16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally>br>

***”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…***”__ (my emphasis) The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by our founding fathers. This fundamental rule was not followed in the Kelo decision in which Justice Stevens in delivering the opinion in Kelo effectively expanded the meaning of “public use” to allow the taking of private property for a “public purpose” which is not what our Constitution declares.

In other words, when questions arise as to what is and what is not constitutional, and with respect to a specific provision of our Constitution, we are to find its meaning as it was understood by those who framed and ratified the Constitution. Some of the historical references would be: Madison’s notes, the Federalist Papers and Anti Federalist Papers, and the State Ratification debates [Elliot’s Debates]. The rule is as follows regarding these important primary sources which document the “legislative intent” of our Constitution and meaning of words:

16 Am Jur, Constitutional Law, “Rules of Construction, Generally”

par. 89-- The Federalist and other contemporary writings

“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

Also see Par. 88–Proceedings of conventions and debates.

“Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument.” (numerous citations omitted )

The bottom line succinctly stated by our very own Supreme Court is:

***The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.***_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)

And Jefferson stated the above as follows:

***“On every question of construction [of the Constitution], 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.”***–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Hope this is helpful to you.

JWK

***Those who reject and ignore abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean. ***


#6

With regard to the “Bill of Rights” we find the founders expressed intentions in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added .

And Madison, speaking on the very issue regarding these amendments to the Constitution indicates they were to preserve and protect “federalism” our Constitution’s plan, which reserves all powers not delegated to Congress to the respective States and the people. He says:

“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution

Finally, it is important to read the Federalist Papers in which federalism is summarized as follows:

***“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. ***__ Federalist Paper No. 45

Bottom line is, the first ten amendments were adopted as a written protection to keep the freaken federal government’s nose out of the internal affairs of the various states!

JWK

"If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story


#7

Very cool man. I am glad to see that somebody else had taken to the study of the Constitution. I have my own opinions about most of this, I am just trying to further the conversation. As opponents of those what would expand the role of the federal government, we should be asking these questions. In reality there is no such question as “I don’t think this is Constitutional”. It either is or it isn’t. If you are operating a hand saw you don’t mince words when it says “don’t put your hand on the blade while it is moving” (pun kind of intended), you just don’t. Of course you can choose to but the only possible result can be injury.

Most people are under the impression that there are “Constitutional Scholars” (not the official post) that have some keen understanding of the Constitution that no person, without that title, can acquire. That just flat out isn’t true. For less than $50, I was able to acquire four dictionaries, one from 1768, one from 1792, one from 1803 and one from 1810. There is no word from the founding era that I cannot give you a direct definition of. I happen to have an interest in linguistics (I speak four languages) and understanding entomology is paramount to deciphering the meaning of the Constitution. It is not an art of interpreting, it is deciphering or translating. For the benefit of some I will explain.

When dealing with linguistics there are two primary fields, interpretation and translation. Interpretation would be to find a rough meaning for on the go use. You might use an interpreter if you went to a foreign country on vacation for example. Your interpreter will give you a rough approximation of what you were told but it will not be exact. This serves the purpose when you are trying to accomplish when you’re on vacation. It is unlikely that your translator is going to cause you problems if you don’t get the difference between the word “big” and “huge”. The other field is “translation”. Translation doesn’t happen on the fly and it is not usually done in real time with both parties present. You might have an interpreter translate with you while you are at a business meeting but when it comes time to sign an agreement you will have a translator read the document over and give you an actual translation. In translation there is no (or little) meaning lost in the document. Getting to choose the “best” of something is not the same as getting to choose a “good” something. Translation is what should be used when there are questions about the Constitution’s meaning, not “Interpretation”.

I just want the discussion happening. Republicans would regain me among their ranks if they would stop picking and choosing when they followed the document. (I think you will look forward to my “Incorporation Doctrine” thread.

Mike


#8

By whether the Constitution allows for the authority specifically based on the original intent of those who established it or the Amendments that have since been properly ratified. Supreme Court precedent is not entirely worthless but given the number of decisions that have been made with political motives instead of Judicial integrity they should carry little weight by themselves.

The Constitution itself and access to the specific, common definitions of the words used at the time of their inclusion. I use the historical realities of the time for context but not as a soul basis for authoritative conclusions.

Absolutely not, this has led to the eradication of an important check and balance. The States were intended to be individual laboratories with the Freedom to experiment with various ideas and the authority to keep the Federal Government in check.

Selective application of Constitutional Rights and/or limitations to State governments shifts the power from the States as supreme to the Federal government as supreme and gives the Supreme Court far more power than our Founders intended.

If the people of any given State decide that they prefer censorship, Socialism, gun eradication, the abolishing of free markets and/or individual property Rights than these people should be free to destroy themselves. Likewise, any people of any other State who decide to reject these imbecilic ideas should be free to condemn all such efforts in their State

This makes the idiocy that tends to be regional incapable of bringing the entire Nation down and provides an object lesson (by observing the results) for States that have not yet decided a position on these “new ideas” that gain steam in academic circles and pop culture.

The Constitution secures our Rights from Federal intrusion, it was not intended as a babysitter for all Americans against attacks from themselves and their own stupidity.

Stupid is supposed to hurt, that is the built in disciplinarian. The Incorporation Doctrine just insures that everyone “hurts” whether they were part of the “stupid” group or not.

Hard to choose but the decision that birthed the most unjust encroachment upon our economic Liberty was probably Gibbons v. Ogden or Wickard v. Filburn and the decision that caused the most destruction to our Civil Rights was probably Roe v. Wade.

I would include Dred Scott but that was corrected and Obamacare will certainly rival the current Commerce Clause bastardization but it is still just another child of the original Commerce Clause bastardization.

Absolutely, I am 48 years old and I would gladly pay Social Security taxes for now till the day I die with no legal Right to collect it if it was part of a phase out that would eradicate it entirely after everyone over the age of 60 today dies.

My children and Grandchildren would have a real chance at a future if this were the case and I will gladly bear the burden for their sake and the sake of Constitutional Integrity.

I would gladly accept all the oppression that California enacts as these monsters go about despising the Constitution if it meant that all the other States who embrace the Constitution were free from Federal oppression to respect those same Rights, I could move to a place that honored Liberty if that were the case.

Well, they must “interpret it” in order to determine if Congress has passed a law that is beyond their scope of authority or that violates a Constitutional limit on their power so yes.

But if you mean “interpret” as in using no reasonable, verifiable means to preserve the integrity of the original intent then no, they do not have that authority.

There is an Amendment process contained in the Constitution, until such time as it is amended via these parameters the job of the Supreme Court is to apply the original intent of the Founders or any post founding effort that properly amended it.


#9

I like our founder’s original intent of laboratories of democracy but why does it seem they didn’t have on their minds that some states will want to fail?


#10

Our founder’s gave us a federal republic represented by democratically elected officials. It may seem like splitting hairs but the difference is very significant. In a federation member states may fail but it does not necessarily mean the whole ship is doomed. In our case however… well lets just say we didn’t do it right.

Mike


#11

They did, that is why they limited the power of the Federal Government.

If only an individual State can embrace the oppressive ideas that cause them to fail (as opposed to these ideas crushing us ALL if the Federal Government does them) then America as a whole is protected from these ideas. The States that fail can repent and restore themselves and the smarter States can avoid these brain dead ideas to begin with.


#12
  1. How do you validate the Constitutionality of a law/stance?
    Based on the language and meaning of the original documents and amendments AND according to the Supreme Court case law…considering both opinions and dissents.

  2. What does your research entail?
    Whatever it takes BUT one also must be prepared to ask how the Constitution & Founders WOULD have addressed a completely NEW situation that could not have arisen in the 1700’s. Semi-automatic weapons & Automatic Weapons did not exist for example. E-mail did not exist so how does that impact the Fed’s mandate to run the Postal Service?

  3. Do you believe in “incorporation doctrine”?
    ABSOLUTELY…but it is not a question of belief. It is a question of the LAW and the INTENT of the writers of the 14th amendment AND how it was described at the time. I’m looking forward to your exposition to the contrary but I sincerely hope it is not another misguided attack on the 14th as “illegal”.

  4. What is the worst SCOTUS ruling?
    I used to say Plessy but now I think Kelo is the worst. And I DO believe Marbury v. Madison was the BEST decision ever made because it secured our future as a society where the will of the majority could not over-ride the rights of the minority.

  5. If you are going to adhere to the Constitution can you do so when it does not benefit you as an individual?
    Sure. I disagree with the Court all the time…yet I respect their decisions as law and work for change when it hurts me or I disagree. BTW…THAT IS adhering to the Constitution. I don’t get to decide what is Constitutional…though I can certainly hold opinions. I take the opinions of those who claim special knowledge of what the Constitution says and means with a big grain of salt since our 9 very learned justices have been studying it and the law all their lives and are often pretty split themselves.

  6. Is “Interpreting the Constitution” an authority granted to the SCOTUS?
    Absolutely. Now tell me how we’ve been doing it wrong for over 200 years and no such authority exists and if only we would listen to reason the country could be saved. (Loaded question…loaded answer).


#13

Where do you find that the supreme court has such a power?

  1. What does your research entail?
    Whatever it takes BUT one also must be prepared to ask how the Constitution & Founders WOULD have addressed a completely NEW situation that could not have arisen in the 1700’s. Semi-automatic weapons & Automatic Weapons did not exist for example. E-mail did not exist so how does that impact the Fed’s mandate to run the Postal Service?

It doesn’t and they didn’t attempt to handle those things. We aren’t supposed to ask how the founders would have addressed a completely new situation. We are supposed to let the states handle it and if the 3/4 of the states agree to a certain handling of an issue then we should pass an amendment.

Did you know that a STATE religion is Constitutional. A STATE can abridge your freedom of speech. Three states had state religions even after the First Amendment was ratified.

  1. Do you believe in “incorporation doctrine”?
    ABSOLUTELY…but it is not a question of belief. It is a question of the LAW and the INTENT of the writers of the 14th amendment AND how it was described at the time. I’m looking forward to your exposition to the contrary but I sincerely hope it is not another misguided attack on the 14th as “illegal”.

No, my argument to the contrary lies purely on what was said. Even if you are to take the “well the supreme court said” route, explain why “Incorporation Doctrine” didn’t exist for a full 70 years after the ratification of the 14th amendment. In fact the vaunted Supreme Court heard arguments regarding the very fabric of the “Incorporation Doctrine”. In US v Cuikshank the court found that the First Amendment did NOT apply to the states. How the could a subsequent supreme court (a full 45 years after the ratification and 40 years after the ruling in the Cuikshank case) determine that the words meant something different? In Chicago B. v. Chicago which was cited 20 years later the court chose to ignore the State Constitution and incorporate the 5th amendment against the states, increasing the power of the federal government.

I have no problem with the incorporation of the BoR, I just have a problem with the Supreme Court doing it and not the States.

  1. What is the worst SCOTUS ruling?
    I used to say Plessy but now I think Kelo is the worst. And I DO believe Marbury v. Madison was the BEST decision ever made because it secured our future as a society where the will of the majority could not over-ride the rights of the minority.

Marbury v. Madison is right up there with Wickard v. Filburn for the worst decision. It was another example of unelected officials dictating policy and expanding their influence.

  1. If you are going to adhere to the Constitution can you do so when it does not benefit you as an individual?
    Sure. I disagree with the Court all the time…yet I respect their decisions as law and work for change when it hurts me or I disagree. BTW…THAT IS adhering to the Constitution. I don’t get to decide what is Constitutional…though I can certainly hold opinions. I take the opinions of those who claim special knowledge of what the Constitution says and means with a big grain of salt since our 9 very learned justices have been studying it and the law all their lives and are often pretty split themselves.

Can you cite an example of something you disagree with that you will say is Constitutional?

  1. Is “Interpreting the Constitution” an authority granted to the SCOTUS?
    Absolutely. Now tell me how we’ve been doing it wrong for over 200 years and no such authority exists and if only we would listen to reason the country could be saved. (Loaded question…loaded answer).

Simple. Take Roe v. Wade. Use nothing but the Constitution (not previous SCOTUS decisions because you would have to contradict previous SCOTUS decisions to arrive at the conclusion, implying that one court is better than the latter merely because they came after) to defend it. You can’t. You MUST have a definition from a court and in almost every instance that same judgement will conflict with a prior decision.

In fact, don’t tell me that “we’ve been doing it for 200 years so it must be right”, I tried to say that “I’ve been parked here for 2 weeks so I must be allowed to” defense in court one time. I had to pay the fine. Show me the interpretive power in Article 3. It doesn’t exist.

In fact, you are not allowed to establish a ex post facto law, according to the Constitution. Does that mean that if a law is found to be Constitutional by the Supreme Court after it is found to be Constitutional that you may then go back and prosecute everyone under that law between the two decisions? It would not be a after the fact because it would have been written prior to said action but the ruling would effectually be a ex post facto ruling, would it not?

Mike


#14

Mike…I was right about your views. I concede. You win. Enjoy your life.
Meanwhile…I’ll continue to live in the real world.


#15

Come on, seriously? Its that easy? You can’t argue with me so you “walk away”. You’re supposed to be a “conservative”. What are you conserving? I mean seriously I really wanted more than that.

I didn’t go the “illegal 14th ratification” route… I don’t think it was ratified illegally… I went the “how does the meaning of the words change over 40 years and everybody is ok with it” route.

Mike


#16

Our Constitution is very explicit in limiting the Supreme Court’s duty in this area and commands the Supreme Court to abide by and apply “… the rules of the common law“.

And under the rules of English common law which is where our system is derived from, enforcing legislative intent is at the top of the list! Certainly the Supreme Court made a mockery of this rule and engaged in judicial tyranny when deciding the Social Security cases, Helvering v. Davis, 301 U.S. 619 , and the Steward Machine Co. case (1937), and ignored the meaning of “general welfare” as it was repeatedly expressed during the framing and ratification process of our Constitution. Or take the Kelo decision which you correctly disagree with in which Justice Stevens inadvertently admitted to ignoring the meaning of “public use” as it was understood by our founding fathers and decided to rule private property may also be taken for a “public purpose”.

And so, your notion that we “validate the Constitutionality of a law” using “Supreme Court case law” is misplaced, unless the case law in question provides the relevant documented legislative intent of the founders as expressed during the framing and ratification process of our Constitution. Our Constitution is the “precedent” and not the opinions of our Supreme Court Justices.

In Hawaii v. Mankichi, 190 U.S. 197 (1903), our Supreme Court eloquently notes with regard to legislative intent:

But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

Either you support and defend our Constitution and the documented intentions under which it was adopted, or you stand against it and pretend it means whatever you wish it to mean.

JWK

***The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.***_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)