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 Some of the historical references would be: Madison’s notes, the Federalist Papers and Anti Federalist Papers, and the State Ratification debates [Elliot’s Debates].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.
***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. ***