How Should We Interpret the Constitution? (Who are the real guardians of our liberties?)

American Thinker ^ | 02/10/2011 | Bruce Walker

[SeekAndFind]

The Constitution is plainly written.  It was intended to be easy to understand.  The Constitution is also short.  Why do we need a process for interpreting the Constitution?  If we have such a process for divining the meaning of the Constitution, why should that process be secret deliberations of nine judges who are effectively unaccountable to the people?  The issue, after ObamaCare, has become more than academic.  Idaho has passed a resolution of nullification, which removes from the federal bench ultimate power to reject congressional actions as unconstitutional.  The Idaho Attorney General Lawrence Wasden advises that nullification is unconstitutional, but he has no power to prevent the Idaho Legislature from passing its resolution. 

What happens if a number of states pass similar resolutions?  What if these states simply refuse to cooperate with the federal government in enforcing such a requirement or even use state police power to openly defy federal enforcement?  Is nullification constitutional?  The problem with federal judicial usurpation of the right to interpret the Constitution is that no one really knows what is "constitutional" and what is not.  If the Supreme Court upheld a congressional statute outlawing the practice of Zoroastrianism in America then the Supreme Court would have violated the Constitution.  But these justices could not even be impeached for that action because they would have just declared that the Constitution allowed Congress to do what it did.

The Founding Fathers understood that the Constitution needed to be changed, from time to time, and that it needed to be clarified as well.  So within the Constitution is Article V, which prescribes just how to change the Constitution.  Nowadays, this way of changing the Constitution is simply ignored.  Instead, federal courts "interpret" the old language of the Constitution instead of legislators either changing that language to allow the Constitution to "grow" or to clarify what the original language meant.  Now, even if the Constitution is amended, federal judges will interpret what that amendment means. 

While state nullification is one approach to resisting an imperial judiciary -- an approach that could lead to a hodge-podge of states' interpretation of what the Constitution allowed and what it did not -- there are other avenues which we should consider.   As an initial premise, we might accept some of the early arguments against a super-Supreme Court:  every constitutional officer -- the president and vice president, the members of Congress, and federal judges take an oath to defend the Constitution -- this places the duty upon each to adhere to those powers recited in the Constitution.  It also implies an understanding of those limits.  The oath is self-executing.  It is for federal judges, and it should be for other federal officers.

What would that mean?  When Congress passes a law, it is constitutional.  This approach sounds scary but it is not.  When Congress passed the blatantly unconstitutional Alien and Sedition Acts, no federal judges leapt to the defense of the First Amendment.   The legislatures of Kentucky and Virginia determined the laws were unconstitutional, but even more importantly, the voters of America determined the laws were unconstitutional:  the Federalist Party was crushed in the next election and died an ignoble political death.    Americans had no choice but to vote out of Congress members who treated the Constitution so cavalierly.   If courts said nothing about the constitutionality of federal laws, then voters would have to champion the Constitution themselves. 

The Constitution would stop being the mysterious runes of judges and lawyers and become the documentary statement of our liberties defended only by the governed:  the people.  This would not preclude state legislatures from doing what Idaho has done and what Kentucky and Virginia did in 1798.  When campaign finance laws were passed by Congress, state legislatures could have passed resolutions declaring that this was unconstitutional.  The legislatures could do more and censure any members of Congress from the state who voted to violate the Constitution.     

If this became a convention, if state legislatures were expected to explicitly state an opinion on federal laws or other federal actions which were unconstitutional, then the remedy -- defeat of candidates for federal office who violated the Constitution -- would be a much more potent tool for safeguarding our rights.  Does this still sound scary?  Then remember this:  once we had no Bill of Rights; once we had no Constitution; once we had no national government at all.  Yet we still had those liberties we cherish.  Indeed, the Revolutionary War was less to create new liberties than to preserve what Americans believed were existing liberties.  Freedom is never protected by judges, and seldom protected by politicians.  It lives, or it dies, with us.  How should we interpret the Constitution of the United States?  How about this:  we should interpret it as if the Constitution actually belonged to us. 

Bruce Walker is the author of a new book:  Poor Lenin's Almanac: Perverse Leftists Proverbs for Modern Life

[Parmy]

I agree!!

[ml/nj]

Why do we need a process for interpreting the Constitution?

Because some idiots do not understand what natural-born, no and reserved mean.

ML/NJ

[MrB]

It comes down to accepting or rejecting objective truth/rules.

If you are a relativist, then “right” comes out of the barrel of a gun, and who controls the gov’t controls the definition of right and wrong. Gov’t, to a relativist, fulfills the role of God.

[loveliberty2]

Thanks for posting! The question posed in the title, "Who are the real guardians of the Constitution?" is addressed by Justice Story in the following essay:

Our Ageless Constitution

"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order...."
-Justice Joseph Story

Justice Story's words pay tribute to the United States Constitution and its Framers. Shortly before the 100th year of the Constitution, in his "History of the United States of America," written in 1886, historian George Bancroft said:

"The Constitution is to the American people a possession for the ages."

He went on to say:

"In America, a new people had risen up without king, or princes, or nobles....By calm meditation and friendly councils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had chosen Justice as their guide."

And two hundred years after the adoption of this singularly-important document, praised by Justice Story in one century and Historian Bancroft in the next and said by Sir William Gladstone to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man," the Constitution of 1787 - with its Bill of Rights - remains, yet another century later, a bulwark for liberty, an ageless formula for the government of a free people.

In what sense can any document prepared by human hands be said to be ageless? What are the qualities or attributes which give it permanence?

The Qualities of Agelessness

America's Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves - their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.

"The foundation of every government," said John Adams, "is some principle or passion in the minds of the people." The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is "instituted for those who live under it ... it ought, therefore, to be so constituted as not to be dangerous to liberty." And the American government was structured with that primary purpose in mind - the protection of the peoples liberty.

Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, "the sacred fire of liberty" might depend "on the experiment intrusted to the hands of the American people" That experiment, they hoped, would serve as a beacon of liberty throughout the world.

The Framers of America's Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed:

"History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views."(Underlining added for emphasis)

The Constitution, it has been said, was "not formed upon abstraction," but upon practicality. Its philosophy and prin­ciples, among others, incorporated these practical aspects:

• Recognition that love of liberty is inherent in the human spirit.

• Recognition of Creator-endowed, unalienable, individual rights.

• Recognition that meaningful liberty is possible only in the company of order and justice. In the words of Burke: "Liberty must be limited to be possessed."

• Recognition that in order for a people to be free, they must be governed by fixed laws that apply alike to the governed and the government.

• Recognition that the Creator has not preferred one person or group of persons as rulers over the others and that any government, in order to be just, must be from among the great body of the people and by their consent - that the people have a right to self-government.

• Recognition of human weakness and the human tendency to abuse power; therefore, of the need to divide and to separate the power granted to government; to provide a system of checks and balances; and to make government accountable to people at frequent intervals.

• Recognition that laws, to be valid, must have their basis and limit in natural law - that law which, as Cicero wrote, "is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite."

• Recognition of the need for structuring a government of laws, not of men, based on enduring principles and suitable not only to the age in which it is formed, but amendable to different circumstances and times, without sacrificing any of the three great concepts of Order, justice, or Liberty.

• Recognition that the right to ownership of property is a right so compelling as to provide a primary reason for individuals to form a government for securing that right.

• Recognition of the need for protecting the individual rights of each citizen, rich or poor, majority or minority, and of not allowing the coercive power of government to be used to do collectively that which the individual could not do without committing a crime.

• Recognition of necessity for incentive and reward as impetus for achievement and growth.

• Recognition of the need for a "Supreme Law of the land" a written constitution which, consistent with its idea of the sovereignty of the people, would provide its own prescribed amendment process, thereby circumventing any potential unconstitutional changes by any of the branches of government without the people's consent.

The Constitution of the United States of America structured a government for what the Founders called a "virtuous people - that is, a people who would be able, as Burke put it, to "put chains on their own appetites" and, without the coercive hand of government, to live peaceably without violating the rights of others. Such a society would need no standing armies to insure internal order, for the moral beliefs, customs, and love for liberty motivating the actions of the people and their representatives in government - the "unwritten" constitution - would be in keeping with their written constitution.

George Washington, in a speech to the State Governors, shared his own sense of the deep roots and foundations of the new nation:

"The foundation of our empire was not laid in the gloomy age of ignorance and superstition; but at an epocha when the rights of mankind were better understood and more clearly defined, than at any former period.... the treasures of knowledge, acquired by the labors of philosophers, sages, and legislators, through a long succession of years, are laid open for our use, and their collective wisdom may be happily applied in the establishment of our forms of government."

And Abraham Lincoln, in the mid-1800's, in celebrating the blessings of liberty, challenged Americans to transmit the "political edifice of liberty and equal rights" of their constitutional government to future generations:

"In the great journal of things happening under the sun, we, the American people, find our account running ... We find ourselves in the peaceful possession, of the fairest portion of the earth....We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them - They are a legacy bequeathed us, by a once hardy, brave, and patriotic...race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights, 'tis ours only, to transmit these...to the latest generation that fate shall permit the world to know...."

Because it rests on sound philosophical foundations and is rooted in enduring principles, the United States Constitution can, indeed, properly be described as "ageless," for it provides the formula for securing the blessings of liberty, establishing justice, insuring domestic tranquillity, promoting the general welfare, and providing for the common defense of a free people who understand its philosophy and principles and who will, with dedication, see that its integrity and vigor are preserved.

Justice Joseph Story was quoted in the caption of this essay as attesting to the skill and fidelity of the architects of the Constitution, its solid foundations, the practical aspects of its features, and its wisdom and order. The closing words of his statement, however, were reserved for use here; for in his 1789 remarks, he recognized the "ageless" quality of the magnificent document, and at the same time, issued a grave warning for Americans of all centuries. He concluded his statement with these words:

"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."

Our ageless constitution can be shared with the world and passed on to generations far distant if its formula is not altered in violation of principle through the neglect of its keepers - THE PEOPLE.

---

Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part VII:  ISBN 0-937047-01-5

[Wurlitzer]

Of course the constitution MUST be interpreted. It has to be!

When the lying scum of the earth lawyers (redundant on so many levels) become such brilliant USSC judges they have to interpret it through the eyes of co-conspirators with congress.

If we had honest USSC judges and not 100% political biased black robed demigods there would be no need for interpretation. It means what it says and there are even some nice little amendments which basically say “If it is not in there it is not in there”

When we start getting 9-0 or worse case 8-1 decisions I'll feel much more comfortable that the USSC is ruling based directly upon the Constitution and not politically biased interpreted case law crapola.

[MileHi]

Because some idiots do not understand what natural-born, no and reserved mean.

Or "infringed".

[Emperor Palpatine]

IMNSHO the Constitution doesn’t need to be interpreted. It means exactly what it says.

[bestintxas]

“What happens if a number of states pass similar resolutions? What if these states simply refuse to cooperate with the federal government in enforcing such a requirement or even use state police power to openly defy federal enforcement? Is nullification constitutional?”

Sounds like gobbly gook to me.

If the author had read thru the Constitution all the way to Art V, he might have read that the ultimate power does indeed reside with “a number of states” (in this case 38).

This amount getting together can do anything, i.e. - ursurp all laws passed by Congress, overrule all executive orders and even go against Supreme Court rulings.

That Article is exactly what the forefathers meant when they placed it there, and is pretty simple to understand.

[bgill]

Some people don’t understand the meaning of “is” either.

[Jacquerie]

When Congress passes a law, it is constitutional. This approach sounds scary but it is not.

It is actually quite frightening given the track record of Congress and comments by demorats and obamamao. When a law is challenged in court, the onus should be on the government to show that the law is necessary and proper to execute an enumerated power (Art I Section 8) and that it does not violate the Natural Rights of the people retained by the Ninth Amendment.

These unenumerated Natural Rights are equal with those spelled out in the Constitution and deserve equal consideration by the Courts.

[Dick Bachert]

WE,THE PEOPLE, ARE.

“In questions of power, let no more be heard of confidence in men but bind them down from mischief with the chains of the Constitution.” Thomas Jefferson

“Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it.” — Judge Learned Hand, 1944

http://www.youtube.com/watch?v=8bRvFzxqlUY

[jongaltsr]

We are the Guardians.
The Politicians are just the fungus that grows when the fields are not tilled often enough.
That is also why we have guns, baseball bats, pitchforks and the ballot.

[ex-snook]

We have had a succession of Presidents who come up with work-arounds for formal Constitutional declarations of war. This ranges from police actions to UN resolutions. The result is a nation not united in war. And the outcome is we don’t win the war. So much for the Constitution.

[Bigun]

Although the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence, and by which it was, in fact, created; yet as the creature of that compact, it must be bound by it, to its creators, the several states in the union, and the citizens thereof. Having no existence but under the constitution, nor any rights, but such as that instrument confers; and those very rights being in fact duties; it can possess no legitimate power, but such, as is absolutely necessary for the performance of a duty, prescribed and enjoined by the constitution.

excerpted from:

BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA. IN FIVE VOLUMES. WITH AN APPENDIX TO EACH VOLUME, CONTAINING SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED VIEW OF THE LAWS OF VIRGINIA, AS A MEMBER OF THE FEDERAL UNION. BY ST. GEORGE TUCKER, PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA. PHILADELPHIA: PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL, NO. 17, SOUTH SECOND-STREET. ROBERT CARR, PRINTER. 1803.

[Citizen Tom Paine]

A state should be able to interpose itself between the Federal Government and an individual. The Executive and the Legislative branches are our representatives. They are beholden to we the people. As I recall my history, the Supreme court took over the duty of interpreting the Constitution. It was not one of its original duties.

[Bigun]

“Their[the states] submission to its [the federal governments] operation is voluntary: it’s councils, it’s engagements, it’s authority are theirs, modified, and united. Its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of it’s functions, as such, in the most unlimited extent."

Same source as in my most recent post above.

[Bigun]

"To preserve [the] independence [of the people,] we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude. If we run into such debts as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses, and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes, have no time to think, no means of calling the mismanagers to account, but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow-sufferers."

Thomas Jefferson to Samuel Kercheval, 1816

[Bigun]

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, Federalist 47

When you look around you today what do you see?

[Wurlitzer]

Good post! What do I see today? The reason we were given the 2nd Amendment.