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The Constitution is a grand legal document. I'm not American, and even I think this.
But without sounding offensive, I think the Founding Fathers should be taken with a pinch of salt. I think a lot of their ideas, no matter how good/noble they may seem, did not apply to all Americans. Only white, wealthy land-owners.
But the Preamble is the law of the land. Anything that preceded it is not, and can only be used as a guide into what the founders might have been thinking. The Declaration of Independence and other documents that preceded the Constitution are not the law of the land, and have no force of law nor evidence of constitutionality.
Given that the founders did write many things before the Preamble to the Constitution, it must be conceded that the Preamble reflects a concise summary of their intent. The founders knew they were writing a constitution, and it must be presumed that they thought the matter through.
Anything you discover that was written before the Constitution can very well be a minority opinion, and as such, cannot be used to infer the intent of the writers of the Constitution itself.
We speak with the luxury of precedents, this being 2010. Those guides cannot be minimized.
The Federalist Papers are consulted in Supreme Court Cases. Not that Madison would have been ok with that. Further, if you do not have the English Bill of Rights 1689, then you don't have a case for incorporating the 2nd Amendment. It must be shown that disarming the people has a negative effect. Avalon Project - English Bill of Rights 1689
Furthermore, without Locke, you have no justifiction for the dissolution of government that would be recognized internationally. It is from this, the usurpations and abuses, that is used to fight government entities often in state. You may not just say it is tyranny. You must then prove it.
Yes, the preamble is a nice summary.
Last edited by Pandamonium; 05-30-2010 at 07:49 PM..
The constitution is, rightfully so, quite concise & to the point. Politics & the courts (both ruled by lawyers) have worked since day one to complicate it in order to justify the need for their guidance.
The Constitution is anything but concise or to the point, in point of fact the Constitution is filled with ambiguity and ill-defined language, take the meaning of the much debated term, natural born citizen. No where in the Constitution is natural born defined and as a result it has been left to statutory definition. The Second Amendment has been subjected to debate purely on grammatical grounds. Prior to Heller, the Court relied on the dependent clause when deciding Miller v United States.
The fact is, the Constitution was written in much haste and without serious consideration regarding every word in the text. Madison in later life rued the fact that he placed "general welfare" purely as a literary flourish having copied it from the Virginia Constitution. But the fact is that it remains a part of the Constitution whose scope was embraced by Hamiltonian federalist and the Courts.
The Constitution is a short document full of generalities that was written over 200 years ago. I'm going to suggest that the reason it has survived for over 200 years is precisely because it is so full of generalities. I've studied Constitutional law and if someone will forgive me, I believe I know a little bit more about it than the average "man/woman on the street" does.
I'll begin by stating some central ideas:
1. The US Supreme Court has the ultimate say over what the Constitution means. This is why confirmation battles over new justices are always so controversial. Its not YOUR opinion that matters when it comes to constitutional law. Its the Supreme Court's opinion that matters.
2. Let's start with the Tenth Amendment. This is one that conservatives are always quoting to claim that the federal government has no significant powers. It says that all powers not delegated to the federal government are reserved to the states. The problem here is that the constitution also gives Congress the power to tax, to regulate interstate commerce, to coin money and regulate the value thereof. The Fourteenth Amendment which was enacted after the Civil War appears to enlarge federal powers further by giving Congress the power to enforce equal rights (regardless or race, sex, or previous condition of servitude) by enacting "appropriate legislation".
Most legislation passed by Congress can be clearly justified under one or more of these Constitutional powers. Therefore, the Tenth Amendment isn't saying anything at all. Its simply saying that whatever hasn't been given to Congress is reserved to the states.
3. "Original intent" (or what it is alleged the framers wanted) is not useful concept in most situations. First of all, the Framers didn't agree on alot of things. For those who don't know it the Constitution is the product of a huge amount of compromise. We have a House and Senate because of one compromise. We have an electoral college as a result of another compromise. We have a Bill of Rights only because some states refused to ratify the Constitution without it. Ratification by only 3/4's of the states was required precisely because the framers feared the couldn't get unanimous consent for this new form of government. Finally, would you really want "original intent" if it was possible to get it? Remember what America was like in 1789: We had black slaves; women without a right to vote; and in many states non-property owners couldn't vote either. America is great because of the way it changed and evolved.
4. Many of the Framers realized the imperfections in what they were doing. Thomas Jefferson favored a system where all laws expired in twenty years and the succeeding generation started from scratch and enacted the laws it wanted.
5. Most power over the military and to wage war is actually placed in the hands of the legislative branch, not the executive. Presidents have appropriated more power than is justified by the Constitution.
6. The Constitution and its freedoms are not particularly original. Most of the ones set forth in the Bill of Rights are simply the result of abuses we suffered at the hands of England. I include having the freedom of press abridged; having freedom of assembly abridged; having troops in quartered in our homes; and having our homes searched without a search warrant. God didn't suddenly swoop down one day and tell the Framers what to write.
7. The Constitution couldn't survive for one minute if judges didn't interpret it. Its an old document that doesn't take into everything from telephones to satellites to the internet.
8. The Constitution (in amendment 13) makes everyone born in this country a citizen automatically. You don't like illegal aliens coming here and birthing children who become citizens? Fine, get the Constitution amended. Its what it will take to change it.
9. The Constitution wasn't written to maintain capitalism, socialism, or any other economic system. Its clear the government can take property if it pays compensation to property owners. Congress can enact a host of regulatory legislation under its powers to regulate interstate commerce and impose taxes. Justice Oliver Wendell Holmes stated exactly this in the case of Lochner v. New York. The Constitution left it up to Americans to decide what kind of economic system they wanted.
10. The Founding Fathers were brilliant men who had some good ideas they put in the Constitution. I don't get warm and gooey-eyed thinking about them though. Many were slave owners. Worst of all, the Constitution failed to deal effectively with slavery and we had to fight a bloody war that cost 400,000 lives to rectify that problem. In many ways the Constitution is great not for what it was, but what it has become.
Last edited by Green Irish Eyes; 05-30-2010 at 06:54 PM..
Reason: Just cleaned up a little left-over coding at the end.
Are you referring to the inflammatory speech of daytime talk radio? There is nothing filthy or vulgar on the public airwaves, except for a few hours in the middle of the night. On non-public airwaves, filthy and vulgar speech in print and electronic media is nearly all being delivered by large corporations because it generates huge profits, and the ACLU is right in there defending the right of conservative corporations and shareholders to harvest these ill-gotten gains.
I don't listen to AM radio, nor do I know anyone who does. In fact, I'm surprised that it still exists. (I have a suspicion that that it may be being kept alive by knots of left-wingers who grimly jot down the latest outrage from Rush or Beck to report breathessly on Daily Los or use on the C-D Forums!) No, I refer to the steady stream of vulgarity that pours from the arts, and the film, music, and entertainment industries -- the urine-soaked crucifixes, the repulsive Vagina Monologues, and the plays like this:
The ACLU specializes in defending ugliness and hatred. It is infallible in its ability to support those who wish to spread vulgarity and perversion -- like NAMBLA...
My reference was to the phrase "Ensure domestic tranquillity", remember? The ACLU and its supporters haven't the faintest idea what that might mean...
No, I refer to the steady stream of vulgarity that pours from the arts, and the film, music, and entertainment industries -- the urine-soaked crucifixes, the repulsive Vagina Monologues, and the plays like this:
My reference was to the phrase "Ensure domestic tranquillity", remember? The ACLU and its supporters haven't the faintest idea what that might mean...
Ensuring domestic tranquility means, in part, refusing to arrest people for doing what offends a few highly sensitive complainers. A gallery display of art would not offend you at all, if you remained out in the street, which is one of your options.
The Founders knew about Thomas Paine, they knew him personally, they read his works. They wrote the First Amendment knowing that it would protect Paine, no matter how offended some readers would be.
Ensuring domestic tranquility means, in part, refusing to arrest people for doing what offends a few highly sensitive complainers. A gallery display of art would not offend you at all, if you remained out in the street, which is one of your options.
The Founders knew about Thomas Paine, they knew him personally, they read his works. They wrote the First Amendment knowing that it would protect Paine, no matter how offended some readers would be.
Keep firmly in mind that the opposite of heightened sensitivity is insensitivity. Or numbness.
The founders would throw Eve Ensler out on her ass if she mouthed off about her vulgar notions of what comprises civil discourse at the Constitutional Convention. If our society had a scintilla of common sense, it would (figuratively) do the same.
Thus have we, taking liberties with Justice Breyer, DEvolved.
The Constitution is a grand legal document. I'm not American, and even I think this.
But without sounding offensive, I think the Founding Fathers should be taken with a pinch of salt. I think a lot of their ideas, no matter how good/noble they may seem, did not apply to all Americans. Only white, wealthy land-owners.
Your comment reflects some lack of history knowledge, specially regarding the drafting of The Constitution. Sadly, many Americans have no idea of the principles in The Constitution. The Declaration of Independence is not the legal document. What it does is reflect the general ideology we as nation stand for and is reflected in The Constitution.
As far as The Founding Fathers comment, they discussed issues like slavery and had a lot debates on that. In the end they had to compromise to give The Constitution a chance to pass. They realized the slavery issue, among many others, was an issue that would not go away and would be settled later. Many did not even agree with slavery and yet owned slaves but slavery was such an integral part of their economies and wrestled on how to resolve the issue. Many did something about it in different ways i.e. Washington freed his slaves after he died.
The Constitution enbodied a set of philosophical principles that are adaptable to society as it changes. Thomas Jefferson stated that laws would change and reflect what society wants as time passes by.
A good book to read on the convention that resulted in The Constitution is entitled "Miracle in Philadelphia". It covers the convention in some pretty good detail.
But the United States DOES have the power to ascertain whether a law meets constitutional standards, and if the US Supreme Court rules that a state law is unconstitutional, the state loses its power to enforce it.
All constitutional provisions trump the Tenth Amendment, and only where the US law is silent, can the Tenth Amendment become operative. So, in fact, the states have no power, unless the US federal law leaves them a vacuum to operate within.
The States do have power. The question is, do they want to use it. The States and Congress have two ways to overrride a Supreme Court decision. The question is if they something is critical or important enough for the nation to do so.
Many people do not seem to realize that checks and balances is not as even as it sounds. The President can override a bill from Congress but Congress can come back by a two thirds vote. The Supreme Court can interpret and rule against the President and Congress but Congress can use the two thirds vote if they want and even ammend The Constitution with the help of the states if they think the Surpreme Court or the President are not in line with the wishes of the People as a whole. Congress is the voice of the People. They in the end are the most powerful branch of government because they are directly responsible to their constituents. The Supreme Courts simply interprets The Constitution but cannot set policy, the President may set policy but Congress can go along with it or not.
Your comment reflects some lack of history knowledge, specially regarding the drafting of The Constitution. Sadly, many Americans have no idea of the principles in The Constitution. The Declaration of Independence is not the legal document. What it does is reflect the general ideology we as nation stand for and is reflected in The Constitution.
As far as The Founding Fathers comment, they discussed issues like slavery and had a lot debates on that. In the end they had to compromise to give The Constitution a chance to pass. They realized the slavery issue, among many others, was an issue that would not go away and would be settled later. Many did not even agree with slavery and yet owned slaves but slavery was such an integral part of their economies and wrestled on how to resolve the issue. Many did something about it in different ways i.e. Washington freed his slaves after he died.
The Constitution enbodied a set of philosophical principles that are adaptable to society as it changes. Thomas Jefferson stated that laws would change and reflect what society wants as time passes by.
A good book to read on the convention that resulted in The Constitution is entitled "Miracle in Philadelphia". It covers the convention in some pretty good detail.
You have a great day.
El Amigo
Thanks for a good post. Elamigo opens an interesting topic (for me, at least, since I have a very limited understanding of the original Constitutional convention and the debates over slavery) on a central, and obviously tragic, episode in our nation's history.
An open question for the Forum members: was the compromise over slavery entered into because the delegates assumed that the practice would fade away on its own (and had already begun to do so as tobacco cultivation was declining and the cotton gin had not yet been invented), or was there some other reason for the decision to forego banning slavery in the Constitution (I believe that the vote was very close on that issue -- with a majority of only one or two votes to leave slavery untouched)?
Thanks in advance to respondents.
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