Skip to comments.The case for 'originalism' - (return to original intent of Founders & Ratifiers is essential)
Posted on 06/06/2005 3:05:36 PM PDT by CHARLITE
Today's battles over judges have too often broken down along party lines. Democrats sought to filibuster judicial nominees. Republicans worked to guarantee nominees an up-or-down vote. Even the uneasy "truce" achieved last month was the result of politics, not principle. The partisan division is unfortunate, because the judiciary is no place to be playing politics. "Judges shouldn't be liberal or conservative, since the Constitution isn't liberal or conservative," as President Ronald Reagan once observed.
Taking the politics out of the judiciary is a key tenet behind the concept of constitutional originalism. That's the idea that judges should issue rulings based on the original understanding of the authors and ratifiers of the Constitution and the Bill of Rights -- rather than on outcomes that reflect the judges' personal biases or policy preferences.
In 1985, just a few months into my tenure as attorney general, I decided to open a national discussion about this idea. In a speech before the American Bar Association, I urged that the country ought to move back toward originalism.
The way originalists read the Constitution, through the eyes of its authors, it remains very much alive, and very much relevant to today's political and legal discussions.
The move toward originalism is a marathon, not a sprint. Law schools, practicing attorneys and even judges are slowly realizing the importance of grounding their decisions on the bedrock of original understanding instead of the shifting sands of public or personal opinion.
This is a debate that will go on, probably for decades. But, if we are to be faithful to the Constitution, it's a debate that must end where it began -- with the words of the Framers emerging victorious.
(Excerpt) Read more at pittsburghlive.com ...
Wow! I sure to agree with that.
He's really fantastic.
"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision."
... Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.ML/NJ
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.
But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
That 1973 decision was certainly an extreme example of judicial revision of our Constitution. The judges wanted to reach a particular political outcome, so they simply pretended to ground their decision in our founding document. They used a nonconstitutional "right to privacy" to create a "right" to abortion on demand."
Mr. Meese I have read Roe v. Wade several times.
Yes, it is true that the "judges wanted to reach a particular outcome," but it was not determined from an "unconstitutional right to privacy."
The enumeration in the Constitution of certain rights, shall not be construed to DENY OR DISPARAGE others (rights) retained by the people.
A right to privacy is surely a right "retained by the people."
What legalized abortion on demand emanating from the Roe v. Wade decision was the Court's arbitrary decision of when a fetus has the "right to privacy" as well.
The fetus, in the Court's view and decision, is not a human being until "viability," which is the utter folly and manufactured stupidity of the decision.
Thus, a fetus is rendered to nothing more than tissue in a woman's body such as a kidney or an eye, in which the "right to privacy" allows for her control of that tissue.
We all have the "right to privacy" to control our own bodies, no can deny that contention. The "right to privacy" was acknowledged 10 years prior to Roe v. Wade.
If a fetus was declared a human being, at conception for example, Roe v. Wade would be superfluous and moot.
And then the law could save babies again.
"The move toward originalism is a marathon, not a sprint. "
How true. Everyone wants what they want, and they want it in the Constitution...
Good. I hope they do return to founders' intent. They can start by killing the "patriot" act. All federal gun laws are be definition unconstitutional as well. As is the war on drugs.
The right to privacy emerged in Griswold v. Connecticut. It specifically declared the "right" of married men and women to obtain contraceptives. Soon it became a right (God given doncha know) to kill the unborn.
However, to say that A right to privacy is surely a right "retained by the people." is overly broad. Do the acts of pedophiles and wife beaters deserve privacy? I like the plain wording of Amendment IV. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated . . . "
Of course, few pay attention to the IV Amendment and our supremes ignore the IXth and Xth.
The Fourteenth Ammendment says otherwise--especially since the Fifth Ammendment guarantees the right to Liberty--which is the right to do whatever does not violate the rights of others.
What? Turn out the winners of the great Jefferson Democrat Revolution?
The Ninth hasn't been incorporated into the Fourteenth, wasn't intended to be, and can't be.
The Ninth can and does limit the federal government- including the federal courts.
The Fifth Ammendment logically is incorporated by the Fourteenth-as the SC has affirmed repeatedly.
The Ninth and Tenth Ammendments clarify and constrain the meaning of the Fifth Ammendment (as well as other Ammendments, and other part of the Constitution.) It is by this mechanism that the Fourteenth indirectly incorporates the Ninth and Tenth.
No, but "penumbras and emanations" may put the Ninth and Tenth into the Fourteenth one day if the liberals have their way.
It's very hard for libertarians to "get" the Ninth amendment. It helps to consider that the Ninth and Tenth protect "majoritarian" rights as well as individual rights from the federal government.
It is for the people to say what other rights they have- and for the federal courts to listen. Passage of state laws is one way the people define their rights. Tradition is another.
Thanks to pioneers like Mr. Meese, who set the trail markers in hostile territory, we have more than just hope today of recovering the great efforts of the founding generations and making them vital again. Hooray!
Majorities have no rights that any individual does not also have. Majority vote cannot convert a wrong into a right. It's just as wrong for 200,000,000 million people to enslave you as it is for your next door neighbor alone.
Thanks to the Ninth and Tenth- and the whole concept of federalism in general- we have fifty states that can try fifty ways of dealing with an issue. What works best is there for all to see.
Yet Solomon, the wisest King ever, wrote that "There is a place for everything under the sun." And the founders were more familiar and happy with Solomon's wisdoms than with than with that bit of later judicial reasoning.
Don't deny that Law may well ban for limited times the trade and public use of an item. And I mean items, not concepts or contracts. Sundries. Tangibles.
Yet foul a law that attempts to totally forbid private holding or private use of any item under the sun. Imo, as I understand the founder's ideas.
Yet any ban on trade should be viewed as an obvious on the face of it afront of the individual rights of property which the founders held very dear. The public use -- or uses that cannot be kept private, might be banned. But we should allow the private keeping and provate use of whatever is under the sun. That is basic Liberty.
To ban trade is to take by duress majestic, for at least a son inheriting an object dear to his father yet uncared for by the son should by basic Liberty be able to market it in provate sale to someone who is sane and well-known enough to keep or use the thing without endangering the rest of us. A permit to transfer with a tax on that permit -- a good too, and well-within the proper combination of Liberty and Prudence exercised by valid Government. Excepting in abnormal times of insurrection, distemper, riot, irrationality or immediate danger of war or catastrophe a no valid Government chartered to act on behalf of a free people recogniznant of their inalienable rights to individual private property, it would be an unauthorized overreach, a violation of charter to ban trade for indefinite or lengthly times.
So why Griswold? By all individual Liberty, the state could not totally and indefinitely ban transfer, trade, of condoms. A less rebellious court in a less ignorant era would have struck down Connecticut's law on those grounds.
The intent of the Founders was to give both judges and juries veto power over the majority. The Ninth and Tenth Ammendments empowers a judge to obstruct the will of the majority, if the judge believes the majority is violating an individual's right to Liberty (or that the Federal government is violating a State's sovereignty.) Juries also have that power, but that arises out of the common law power of jury nullification, and does not rely on any Constitutional Ammendment.
Note that a criminal conviction requires a unanimous jury verdict. The reason is to increase the odds that the jury will nullify bad laws. The same concept applies to judicial review of a law with respect to its Constitutionality, especially with respect to the many unenumerated rights of an individual, which collectively can be understood as the general right to Liberty (which the Fifth Ammendment requires be respected by the Federal governemnt, and which the Fourteenth makes apply to the States.)
You are correct.
It is 14th Amendment that gives jurisdiction of the Bill of Rights within the boundaries of sovereign states. It was the issue of slavery that was the genesis of the 14th.
The "right to privacy" emanates from the Ninth.
The acts of the above violate the rights of others so their can be no right of privacy when a person commits a wrongful act.
Prof. Barnett in his book, "Restoring the Lost Constitution makes the following statement which will help you with your example of "overly broad" rights:
"Natural rights define the boundary or space within which people are at liberty to do as they please provided their actions do not interfere with the rightful actions of others operating within their own boundaries or spaces."
That's not so. If her bodily organs were hers to "control" then presumably she should be able to sell them. She can't even sell her fetus, only kill it.
Yes, she should. But that's not the issue, and never has been. The issue is whether or not an embryo or fetus is morally a person with its own right to life. That's the controvery--nothing more, nothing less.
I have an adopted daughter.
Because "private" adoption agencies house, feed, cloth, and provide medical services to the birth mother during gestation, in order to help protect the fetus from an irresponsible birth mother,I would say that is in effect, selling her fetus.
If she's too irresponsible to have a baby, then giving up her baby is the responsible thing to do. Did she get money for it? If she didn't then she didn't sell it.