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To: Tired_of_the_nonsense
With respect to the powers of Congress, that body does the power to make law, as you state. However, the areas in which Congress may make law are specifically prescribed in Article I, Section 8 of the Constitution. Furthermore, the Tenth Amendment, the last part of the Bill of Rights, limits the powers of the Federal government to those outlined in the Constitution. Prior to the New Deal, it was recognized that amending the Constitution was the one legitimate means to expand Federal powers. Thus, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified to deal with the issues arising from slavery and its aftermath. Likewise, the Sixteenth Amendment was passed to impose a personal income tax, after previous attempts to institute such a tax were struck down by the Federal courts. The Eighteenth Amendment was passed to prohibit the sale, importation, and manufacture of beverage alcohol, as there was clearly no such power of the Feds to do so under the Constitution as then established.

What differentiated American constitutional law from that of England, our mother country, was the establishment of written constitutions. England had, and still has, an unwritten constitution that is an amalgam of common law court decisions, acts of Parliament, and royal decrees. The intent of the Founding Fathers was to make the Constitution the supreme law of the land, overriding common law precedent and acts of Congress or the state legislatures when they came into conflict with the provisions of the Constitution.

The matter of fact is that the original intent of the Constitution is not what I may think was written. Rather, The Federalist Papers, written by Alexander Hamilton, James Madison, and John Jay, who were themselves framers of the Constitution, as arguments in favor of ratifying the document, are very specific relative to what was intended. Congressional debates and the proceedings of the state legislatures indicate the original intent of the amendments.

You state that "our constitutional jurisprudence requires us to follow precedent. Precedent has obviously read this amendment much more expansively than you do." You here highlight the two main flaws in modern constitutional theory: the Constitution as a "living document" and the doctrine of stare decisis.

Modern, that is to say, liberal and neo-conservative, constitutional theory hold to the belief that the Constitution, written for an 18th Century, mostly agrarian, white male dominated society, must be interpreted in the face of economic and social changes, along with current day sensibilities. This is the "living document" theory of Constitutional interpretation. Certain social changes have obviously been reflected in the Reconstruction and women's suffrage amendments. However, since amending the Constitution is a tedious, multiyear process, achieving the same goals through legislation or judicial decision accomplishes the same end, but much more quickly. In the New Deal and thereafter, the concept of "general welfare" overwhelmed the letter of the Constitution, first by the New Deal Congress and, after 1938, by the Supreme Court. By 1940, the Federal government had expanded into a dominant role in American society far beyond what even the most enthusiastically pro-government Founding Father would have dreamed.

In 2005, we have a backlog of over 70 years of business and social regulation and an onerous tax structure that denies persons the proper and full use of their property and is a great burden on economic growth and prosperity. We may have a strong economy at present, but how much stronger could it be if taxes were reduced because the Federal role in society was restricted to defense, the postal service, customs, and so forth, as the Founders intended? Were the Feds not so involved in the energy business, how much more oil and natural gas could come from the continental shelf and the Gulf of Mexico? Would coal and nuclear power not be more plentiful and less expensive?

We still pay a high price in loss of competitiveness and economic freedom from the "good intentions" of Franklin Roosevelt, Lyndon Johnson, and even Republicans like Richard Nixon and George H.W. Bush. Treating the Constitution as a "living document" has been the main path away from limited government and toward socialism.

The second fallacy involves the concept of stare decisis, the position that the cumulative decisions of past Supreme Courts and other courts is authoritative with respect to the meaning of the Constitution. The problem with this position is that these decisions are based on the popular beliefs of a given period. It was Justice Oliver Wendell Holmes, a favorite of liberals, who, in dissenting from a Supreme Court majority decision, noted that said decision was a ratification of Herbert Spenser's Social Statics(a pro-laissez faire, anti-government intervention book). Few would say that we should honor such legal precedents as Plessy vs. Ferguson (upholding de iure segregation) or the Dred Scott decision (effectively permitting slave owners to bring slaves into free states), even though they were as much "settled law of the land" as Roe v. Wade is today. The 19th Century decisions I cited were grounded in the belief that supposed black racial inferiority justified less than full legal protection for those of African ancestry, just as Roe v. Wade is based on the presumption that unborn persons (fetuses) lack the full protection of the law.

American conservatism is not just a warm and fuzzy feeling about God and country, nor is it a justification for statism in the name of "family values" or "national honor". Rather, it is a philosophy based on the strict limitation of governmental power, especially Federal power, preservation and protection of individual liberty, and the maintenance of national independence and sovereignty. It is neither the "throne and altar" conservatism of Europe nor the older liberalism of FDR, JFK, and LBJ, relabeled "neo-conservatism." It is the predominant political philosophy of Thomas Jefferson and the other Founders, with its roots in the writings of Locke, Montesquieu, and earlier philosophers.

The foundational adage of American conservatism should be "the government that governs best governs least," and not "if it feels good, do it."

66 posted on 09/15/2005 10:17:54 AM PDT by Wallace T.
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