Skip to comments.THE UNITED STATES CONSTITUTION: WHAT DOES IT REALLY SAY?
Posted on 01/07/2005 3:51:55 PM PST by Tailgunner Joe
click here to read article
good post. thanks
Ping for future reading.
This reminds me of back when I was 19 years old, and I realized that I had never read the MOST IMPORTANT book in the world---the Bible.
I've since made up for lost time!
(And yes, the Constitution is important too....thanks for posting the article.)
When you read it and the debates and circumstances surrounding the creation and ratification, you find something out.
Who is "bound" to obey the Constitution? The people?
The Constitution amounts to rules and regulations for the government. It is in fact a type of job description.
Actually, the citizenry have a duty to enforce the Constitution. Many of the problems we face today are a consequence of people's persistent failure to do so.
The Constitution is an owners' manual for the United States, by which people can recognize when they should assist the government in battling criminals, or assist fellow citizens in resisting lawless government agents.
...a couple of wishes also come to mind. I want the average American to know that the Constitution is NOT a Living Document.Your rights do not change.
I want people to understand that the government does not grant me my rights,but rather that the constitution is a limiting document.The Constitution limits the government,that its power is granted in limited measure by the people only to do the peoples' business.The Government has no authority to teach me values, morals, ethics etc.
Good Post ....I hope many read and heed
I always wondered why there was a separate study arena in the field of law called 'constitutional law'. Don't all lawyers have to know constitutional law? I guess not.
The sad fact is that everyone in government gives lip service to the constitution, yet there are on the books and in active enforcement laws that violate virtually EVERY SINGLE PROVISION in the constitution.
There is nothing so depressing as reading the Federalist Papers with a copy of the constitution near at hand. Everything, EVERYTHING the federalists assured us could never happen under our constitution has already happened.
Its all well and good to celebrate the constitution, as long as you are not abused of the notion that it offers any REAL protection.
Your protection and your freedoms come from your vigialance and your willingness to stand up and scream.
Every now and then, I start reading the Constitution to see how long it takes me to hit a point where the way the government is run now clearly conflicts with either the letter or the spirit of what's written there.
There have been a number of USSC cases dealing with how and why people can be "conscripted" without violating the involuntary servitude clauses.
And enforcing the Constitution isn't one of them.
There was a show a few years back on PBS (I think) about the Revolutionary War and the development of the United States and they had actors reading quotes by various people of the day. What was really curious was the number of "If you do X, then Y will eventually happen" quotes that have since turned out to be quite true with respect to the Constitution.
Government, being a creation of man, is controlled by man made (positive) law.
Americans already had the laws contained in the 2nd table of the 10 Commandments (murder, theft, etc) called natural law.
The Constitution is a contractual agreement between the entities known as 'States' and the central government called the united States.
It is a living document because simply put 9 political appointees get to say what it says even if printed versions exist which say exactly the opposite. The Constitution protects you not at all against these scoundrels.
The Constitution is not a long piece of writing. Any Freeper who hasn't read it slowly, while thinking about what they're reading is a lazy and ignorant conservative.
But that's not what is going to get me in trouble. What will is the fact that nearly every phrase in the Constitution has been subjected to scrutiny by the US Supreme Court at some point in time. And an explanation of what those particular phrases has been made, or at least applied, to real fact situations.
In reality, there are a lot of footnotes to the Constitution which don't appear in the actual document and can only be learned by reviewing over 200 years of Supreme Court decisions.
Many people say, "It says what it says and that's the way it is." Fine, but two people can read the same thing and reach different conclusions. The 4th Amendment, for example, protects me from "unreasonable search and seizure". I can categorically tell you that any search of my house by the police is unreasonable, dammit, but if they think you're raping babies, knocking down your door in an effort to grab your computer is perfectly fine with me.
The long history of the Supreme Court in dealing with these matters provides the proper context for what the plain words of the Constitution seem to say, which is why it's an intensive and required course at every decent law school that I know of.
Reading the Constitution is mandatory, I think, for every citizen. But to fully understand how it governs this country today, you'll have to read much more than what is contained on those few pages.
Article III provides for the judicial branch of government with one Supreme Court and such inferior Courts as are established by Congress.Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary
Testimony Of Martin H. Redish, Louis And Harriet Ancel Professor Of Law And Public Policy, Northwestern Law School, June 24, 2004
Professor Redish is a nationally renowned authority on the subject of Federal jurisdiction. He received his A.B. With honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, ''without a doubt the foremost scholar on issues of Federal court jurisdiction in this generation,'' unquote.Professor Redish is the author or coauthor of 70 articles and 13 books, including Federal Jurisdiction: Tensions in the Allocation of Federal Power. He was recently included on a list of the 100 most cited legal scholars of all time. Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The Constitution didn't require Congress to create the lower federal courts (Madisonian Compromise). There are absolutely no federal cases constitutionally excluded from state court jurisdictional authority. The State courts could provide an adequate forum to interpret and enforce Federal law, including the Federal Constitution. They are both empowered and obligated under article VI, clause 2, the supremacy clause, to interpret and enforce the Constitution. While this Congress did create the lower Federal courts immediately, it is well established in the case law that that power to, from time to time, ordain and establish the lower Federal courts includes the power to abolish the lower Federal courts, and the greater power to abolish the lower Federal courts logically subsumes within it the power to leave the courts in existence, but limit their jurisdictions. The Supreme Court has proceeded on the logical assumption that if Congress possessed discretion not to create lower federal courts in the first place, it also has the power to abolish the lower federal courts. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Since it has been assumed that Congress possesses the authority to abolish the lower federal courts completely, the Court has assumed that it has the logically lesser power to ''abolish'' them as to only certain cases by limiting their jurisdiction. Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the post-Civil War Supreme Court recognized the unlimited authority explicitly authorized in the text. There are no internal constitutional limits, no limits in article III on Congress' power. Its power is plenary. There are external constitutional limits on this power; the Due Process Clause, and the equal protection directive in the fifth amendment apply, but are satisfied by state courts which Congress can't affect. Congress can't adjucate a case, or dictatate a case, or enforce a decision, or overturn a decision according to the concept of separation of powers. The text, and internal logic of the Constitution allows Congress to combine its power over the article III lower courts and the Supreme Court under the exceptions clause, the end result is that it can completely exclude Federal judicial power over pretty much any issue, as long as the State courts remain available. The case law agrees with the Constitution in this respect.
The text and internal logic of the Constitution are the antidote for deceptive arguments claiming Congress hasn't the power which is explicitly stated, and which has been used with no objections of any U.S. Supreme Court.
Federalist No. 81
LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, "The judicial power of the United States is'' (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.''1
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body.... But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.
To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that this appellate jurisdiction does....
Federalist No 78 -
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Those were "slippery slope" arguments which many people here on FR absolutely refuse to believe would happen to an issue they are advocating regardless of past history.
In the revolution days lawyers used only two or three books to practice law. Definitly a Bible and a Law Dictionary. The others were most likely a copy with the few laws of the time.
Now we have 12 linear feet of new case law every year.
I exercise quite a bit so I thought I had a healthy constitution........zzzzzzzzzzzzzzzzz
Absolutely correct. And the government itself is aware of it, and by law, has created the annotated constitution.
2500+ pages of analysis and interpretation of constitutional law.
America did inherit English common law principles which far exceeded the statutes in existence. I suppose you're probably right, but any lawyer with access to prior decisions would carry the day.
The two books that were most widely owned in colonial America were:
The Bible and
Blackstones Commentaries on the Laws of England
Many Supreme Court- and even Appeals and District Court- rulings are a delight to read for their insight into the Constitution and it's history.
The rulings that bother me aren't.
"The Constitution relied on the Bible" - Where?
Wow, what a link! I spent 20 seconds there and quickly decided to bookmark it.
but those colonial laptops were a bear to put in a saddlebag.
I once had access to a high speed link and downloaded the whole thing.
My granddaughter - 5th grade - had to learn the Preamble this year. She was very impressed that I remembered how it started. (I did not remember much else, but I could remember how it started.)
ROFL. It's because they weren't wireless.
that site seems to get the second amendment wrong.
"Many of the problems we face today are a consequence of people's persistent failure to do so."
You nailed it, Supercat!
(To the original poster: Nice post. Thanks much!)
I am not a lawyer, constitutional or otherwise. This is what gay marriage is using. Why are the laws of some states able to do away with laws of other states? If a state has denied gay marriage, how can another state say they have to allow it?
James Madison modeled the plan to divide the federal government into three branches on Isaiah 33:22; "For the LORD is our judge, the LORD is our lawgiver, the LORD is our king; he will save us."
That is why so many conservatives support a Federal Marriage Amendment.
My second option is to hang out with people like you.
I will support it, but it is a shame that it is necessary.
How was roe v. wade decided on the issue of privacy using the 9th amendment?
Amendment IX: Retention of non-enumerated rights by the people;
Maybe Constitutional Law drives people nuts because of the way of the country today, or drives them out of Constitutional Law.
Ann Coulter and Mark Levin were constitutional lawyers.
Gee. I wonder how many pubic screwels even mention the Costitution during this week. I mean, does it coincide and interfere with MLK Day, or some Salaam-Farqua-Abdul-Mysalami day, or perhaps a week of Gay Studies and "How You Can Learn to Love Butt Boogieing"?
Anybody wanna tell me what the mechanism is that was used to subvert a 3 branch republic into a one branch tyranny? I know what it is, I'm taking responses.
Where is Jonestown? I first read it as Jonesville - which is near Marshall.
I believe the 10th amendment and the enumeration of powers was supposed to bind the federal government. It is quiet a shame that the Bill of Right, as they are called, are not entitled the Bill of Federal Government Allowances and Restrictions. We have slowly come to think that the 1st amendment restricts our religious liberties when in fact it was designed to keep the federal government to the hell away from ruling on this matter. The 2nd amendment was never designed to mean the federal goverment would allow the people to have or not bear arms. We told the federal government that we would not let them say anything about the subject. And so on. We have forgotten the lessons of our forefathers and we suffer now because inexcusibly we have not taken care of our God given freedoms. There is always a strong man ready to take them and use them against us.
Maybe someday I'll write a book on this, but I don't think enough people would care to make it work.
But the Constitution was flawed, in that nobody could be the final authority. That was perfect for the model of checks and balances, but it's no way to run a country, especially when nobody was the final authority as to what the Constitution requires and prohibits.
Our Founders were absolutely brilliant, but they didn't think this one through to its logical conclusion.
That's why the Supreme Court made a power grab in Marbury v. Madison to fix the flaw.
And frankly, it's the logical fix. Presumably, at least at the time, legal scholars who had read the Federalist Papers and had become learned in the law could make more informed decisions on how the Constitution should be applied than anyone in the other branches of government.
While briefly ignored at the time, Marbury has stood the test of time. We now leave the final decision on what the Constitution requires to the US Supreme Court. And it's worked fairly well. We are the most free country on the planet.
The downside to it is the decisions that we don't like, and I don't think I have to name them. Some are based on specious legal reasoning, and some are essentially based on something wholly imaginary.
We have to deal with those, while recognizing that the Supreme Court doesn't like to reverse itself at all. It's incredibly rare. Nibbling at the edges of previous decisions is they way it almost always chooses to go, until finally a previous decision topples under its own weight.
Sudden Supreme Court decisions almost never happen.
In any event, I'm more comfortable with the Supreme Court telling us what the Constitution requires than whatever jackass President might get elected. The Supreme Court respects past rulings, which means the Ship of State can only turn slowly. That's a good thing.
Don't make it any higher than fourth. Lawyers are worse than wives, always seeing danger and threats in everything that's fun.
Stare decisis is just fine for deciding which of several reasonable interpretations should be used. Unfortunately, it is being used--illegitimately--far beyond that.
Perhaps someone needs to codify, whether by statute or constitutional amendment, what should already be--but isn't--practiced: Any court decision, in order to be valid, should be supportable without any reference whatsoever to stare decisis. This does not mean decisions should be made without regard to stare decisis, but they must be reasonable even without it.
I would further add another rule: No person shall be punished by the government, whether civilly or criminally, for any action in a manner beyond what a responsible and knowledgeable citizen would expect to have happen if caught.
This would have a few corrolaries:
For example, in Lawrence v. Texas, I would expect the defendants could have provided evidence that the state of Texas made little or no effort to prosecute individuals who engaged in sodomy 'discretely', even when police had reason to believe it was going on. The defendants could argue that, being aware of this, they had no reason to believe their activities would be of interest to the state. The state would then have to show some reason why the defendants should have been aware that their activities would arouse state interest.
My personal suspicion (just a hunch) is that the defendants were deliberately responsible for the burglary report. If that could be shown, they should be convicted. Such decision-making, however, should be the function of a jury.
BTW, one more thing I'd like to see as a legal practice change: make it 'acceptable' for a court to dismiss a case without prejudice and publicly state some acceptable arguments. There clearly were IMHO some arguments the Lawrence defendants should have been able to use that should have resulted in a remand, but they didn't use them. Had the Court told the defendants what arguments to use, the Court would then have been able to accept the defendants' case based on those arguments without setting bad precedent, or--if the defendants refused to offer such arguments--upheld the prosecution while making clear that the defendants--not the Court--were to blame.