Skip to comments.Literal interpretation of Constitution not practical
Posted on 10/02/2006 12:46:10 PM PDT by kiriath_jearim
Brilliant and thoughtful men wrote the U.S. Constitution. They understood the challenges of creating a document that dealt with specific issues of the time and unforeseen issues in the future. They developed a means of modifying the Constitution to reflect change (amendments) and predicted the necessity for these changes.
If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.
George Washington, first president of the United States and Founding Father
We have used the amendment process as it was intended to right grievous wrongs, none more important than in granting voting rights to blacks (15th Amendment, 1870) and to women (19th Amendment, 1920).
This is why it is particularly painful and frustrating to watch both the left and the right pervert our first two amendments to their own political and ideological needs.
Bill of Rights, Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Leaving the discussion of freedom of speech for another essay, let us focus on "establishment of religion." Activist judges, in conjunction with atheists and secularists, have used a letter written in 1802 by Founding Father Thomas Jefferson to the Danbury Baptist Association, which included the phrase "building a wall of separation between church and state" to support their effort to eliminate God from the public sector.
No rational person believes this was the intention of the Founding Fathers. Their goal was to prevent, understandably and correctly, the establishment of a state religion, not to deny our Judeo-Christian heritage.
Religion ... [is] the basis and foundation of government ... before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.
James Madison, fourth president of the United States and Founding Father
It is a perversion of the Constitution, the First Amendment and the intentions of the Founding Fathers to attempt the removal of God and religion from the public sector. It is ridiculous and intellectually dishonest to think the Founding Fathers would have eliminated "under God" from the Pledge of Allegiance, stripped Christmas decorations from the front lawns of government buildings, eliminated Christmas parties at schools, or insisted that Easter breaks be called spring breaks.
However, the right is no less guilty for the way it distorts the Second Amendment.
Bill of Rights, Amendment II:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left. They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right.
Rational people can discuss how to balance our Judeo-Christian heritage with our need to avoid a modern version of Henry VIII's Church of England. Eliminating God and religion from our public and private lives is as dangerous as fostering a state religion.
The same people can discuss gun control and reach a reasonable conclusion. It is no more logical to ban all handguns and hunting rifles than it is to justify private ownership of an Uzi or fight reasonable efforts to license guns and monitor their purchase.
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
James Madison, fourth president of the United States and Founding Father
In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.
Can one generation bind another and all others in succession forever? I think not. The Creator has made the earth for the living, not the dead.
Thomas Jefferson, third president of the United States and Founding Father
Let us, the living, work together to find common ground that makes sense for all Americans. It will require listening, compromise and a willingness to sometimes subvert our personal desires to the public good a lesson we should have learned from our Founding Fathers.
Scott Harris, of Thousand Oaks, is president of California: The Alpha State. E-mail: email@example.com. His blog can be seen at AlphaState.com, where his radio show can also be heard.
The other outcome of that Supreme Court decision was that a "militia" was defined using language that suggested that it was really a national guard arm of the military, instead of the peoples' militia it was intended to be. This one small group of unelected judges single handedly overturned years worth of 2nd Amendment Supreme Court precedents, all to put one lousy criminal behind bars. Ever since that decision, gun-grabbers have used it to transfer the people's power to the government. During the time period of that decision, nobody seriously thought that the 2nd Amendment referred to a government militia, and the decision was never thought to seriously overturn previous precedents. Just like the contraceptive ruling though, it put a crack in the Constitution that the enemies of freedom have been able to exploit ever since.
Future FReepers may be referring to the eminent domain ruling in a similar way we refer to the rulings above. The right to own property may someday be regulated by the government due to exploiting that unconstitutional ruling. Hindsight has made us smarter now then we were then, but we still can't seem to prevent this sort of thing from happening.
In U.S. v. Miller, the federal government won the chance to bring Miller/Layton to trial. Had they in fact used that opportunity to do so, the question of whether a sawed-off shotgun was suitable for use in a militia could have been put to the jury. For some reason, however, the federal government decided it didn't want to put that matter before a jury (it could have done so in Layton's case). Indeed, I can think of no other instance where the federal government has gone to the Supreme Court seeking authority to prosecute someone, and then offered a plea bargain, for 'time served', immediately after winning.
I think that's a disingenuous mischaracterization. I think it's more like saying the author is the most authoritative source to determine the specific meanings of the words used.
Pure textualism disregards the historical context and intent of the authors. Without this, any of the possible meanings can be attributed to any of the words, and interpretation becomes a game of searching for a particular combinatation of meanings that will produce a desired result.
Make no doubt about it that I am a very strong advocate for the 2nd Amendment but assertions like this support the liberal. What if I am your neighbor and I am distilling saran gas, breeding a biological disease, growing anthrax or building a suitcase atomic bomb? One might argue that I am within my right until I use this weapon (arms) but where is your act of redress after I use such weapons?
I have read the Federalist papers and noted several references of the colonialists being free of the not shackled to the yoke of tyranny due to their personal arms. The thinking behind the 2nd Amendment is lucidly clear and had nothing to do with hunting bear, target practice, shooting burglars or even plugging someone found in your bed with your wife. The 2nd Amendment is there to permit the people to defend and overthrow the greatest potential danger on the planet, then and now - a government.
Now imagine you are one of the founders and are trying to come up with a "bill of rights". You have just written a constitution and created a country. There is already a lot of doubt about the survivability of this new republic. Don't you think that adding an Amendment that states, "If this government becomes tyrannical, the people will always be armed and are obliged to rise up and overthrow such government" would be expressing tremendous doubt in an intentionally wobbly three-legged institution?
"What if I am your neighbor and I am distilling saran gas, breeding a biological disease, growing anthrax or building a suitcase atomic bomb?"
You would have to be extremely wealthy, and your house would have to be a high-tech fully equipped laboratory, in order for you to build even just one of these weapons. If you do have such resources, no law is going to stop you from building such a weapon anyway.
"One might argue that I am within my right until I use this weapon (arms) but where is your act of redress after I use such weapons?"
After you use your weapon on him, he will be dead, just as if you shot him. You can't kill everybody though, so there will be somebody left to arrest you.
"Pure textualism disregards the historical context and intent of the authors. Without this, any of the possible meanings can be attributed to any of the words, and interpretation becomes a game of searching for a particular combinatation of meanings that will produce a desired result."
This is exactly right and 100% correct. Lawyers make a job of finding the way to twist word meanings until the outcome desired by their client is produced. We as the jury need to be able to understand the spirit behind the law, for words alone can mean anything.
Just think about how much the meaning of the word militia has changed in the last 200 years. If Webster's wanted to destroy the 2nd Amendment, all they would have to do is put in the dictionary: Militia- A government run group of armed men.
Words change, meanings change; some words or definitions aren't even used anymore. With a "pure textualism" approach we will be under the authority of unelected language professors and the changing whim of a living language.
How do you fell about taking out Iran's nuclear capability before they have a chance to use them?
"How do you fell about taking out Iran's nuclear capability before they have a chance to use them?"
Iran is not to be confused with a law abiding American citizen who is exercising his 2nd Amendment rights. Iran is a part of the Nation of Islam, our mortal enemy.
Whether they have nuclear arms or not, they are a threat and need to be broken, just as Iraq and Afghanistan needed to be. Iran has said what they will do with their bomb, and it isn't self defense. They plan to destroy Israel who is not just our ally, but our holy land as well.
How in the world did you get the idea that I am a liberal? Furthermore, what are you so mad about?