Constitutionalism 101

The New American ^ | May 12, 2009 | Patrick Krey

[djsherin]

If one wants a nearly thorough education about the U.S. Constitution, it would be wise to examine the following: the notes from the Constitutional Convention, the public editorials written both for and against the proposed Constitution that followed, the state ratification debates, and the actual document itself. These all give one an almost comprehensive knowledge of the U.S. Constitution, although, as any law student will explain, modern constitutional law consists solely of Supreme Court cases mostly from the last 50-100 years. So why should someone bother wasting time on the above-mentioned items when they’re no longer relevant to our federal system of governance?

Constitutional Interpretation

Of all the confusion and numerous misconceptions surrounding the Constitution, none is more prevalent than the notion that the Supreme Court is the ultimate arbiter of the Constitution. Referring to the Supreme Court as the ultimate arbiter means that they get the final say on what the Constitution means and, in addition, can reinterpret it on a whim. This couldn’t be further from what the original Framers and ratifiers of the Constitution had in mind. One of the first cases read by students of constitutional law is Marbury v. Madison. Without delving into all the details surrounding Marbury, students are taught that the court opinion by Chief Justice John Marshall establishes the Supreme Court as the final arbiter of the Constitution. This role, as it is commonly taught, means the Supreme Court can say what is and what is not constitutional, even going so far as to create new legal doctrines independent of the founding period.

[djsherin]

Ping

[djsherin]

I messed up the title. It should be “Constitutionalism 101”.

[GodGunsGuts]

You might want to ask the mods to fix your title—GGG

[devane617]

Yea, I deleted my comment before I pushed in submit....Nice try.

[Texas Fossil]

I cherish my copy of James Madison’s minutes for the Constitutional Convention. In my opinion this is the best treatment of what took place in the meeting and before.

It is hard to imagine a tiny bookish man having the lasting impact he with his colleagues created.

Some things never change.

The founding of our nation is still worth fighting and dying for.

[davetex]

“The founding of our nation is still worth fighting and dying for.”

Yes it is. Be prepared.

[ChetNavVet]

Judicial activism, is indeed, a grave threat to libery.
I, of course, would not know anything more about the subject were it not for one of the best thinkers, talkers, pundits, and, as far as I’m concerned the most fair person out there, a real great guy, that demands nothing aside from hearing him out, and takes on the fly opinions live on his show.

I do not get his show where I’m at, earlier today whilst podcasting his show (which is totally free), I found out about his personal loss, not to turn the thread around, but I think Mark needs to know that we Freepers here unaimously empathise, and offer our prayers, and support, of Mark, His wife, and the rest of her and his family.

Mark, I know you need time, take it - as you feel, we love you. When you’re ready to come back, we’ll welcome you back with open arms.

[tacticalogic]

So how did the Supreme Court broaden its jurisdiction and, in effect, re-write the Constitution? The answer to that question lies in the concept of stare decisis (Latin for “to stand by the things decided”), which is the legal doctrine of precedent. Black’s Law Dictionary defines it as when it is “necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.” Once the concept of judicial review was established, it led to a series of cases where the court began to rely on earlier cases as sources for decisions instead of the Constitution itself.

Indeed.

Document 10

Thomas Jefferson to Albert Gallatin

13 Oct. 1802Works 9:398--99

You know my doubts, or rather convictions, about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expense, & to the greatest abuses. There is, however, one intention of which the act is susceptible, & which will bring it within the Constitution; and we ought always to presume that the real intention which is alone consistent with the Constitution. Altho' the power to regulate commerce does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first, yet a power to provide and maintain a navy, is a power to provide receptacles for it, and places to cover & preserve it. In choosing the places where this money should be laid out, I should be much disposed, as far as contracts will permit, to confine it to such place or places as the ships of war may lie at, and be protected from ice; & I should be for stating this in a message to Congress, in order to prevent the effect of the present example. This act has been built on the exercise of the power of building light houses, as a regulation of commerce. But I well remember the opposition, on this very ground, to the first act for building a light house. The utility of the thing has sanctioned the infraction. But if on that infraction we build a 2d, on that 2d a 3d, &c., any one of the powers in the Constitution may be made to comprehend every power of government.

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces10.html

[pcpa]

I would also suggest a reading of the Federalist Papers.

They may be read at the following http://www.foundingfathers.info/federalistpapers/

They explain in detail what the Founding Fathers were trying to accomplish and what the background was for the different amendments.

[eyeamok]

US Constitution??? I thought congress passed a law making it null and void in 1913. I know here in California it was outlawed and banned from the public in the early seventies. Why do people keep bringing up this 240 year old paper of suggestions for a more perfect union? it really is irrelevant at this stage.

[MamaTexan]

The reason the Founders considered the judicial branch to be the 'weakest' was that it wasn't created at the same time as the other 2 branches, it was created by an act of Congress with the Judiciary Act of 1789, which states:

Sec. 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.

The Judicial branch was never, EVER intended to sit in judgment of a single State. It only had the ability to judge issues between two or more States.

That's why Madison wrote in his Report on the Virginia Resolutions -

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

[Repeal The 17th]

bump

[bamahead]

Libertarian ping! Click here to get added or here to be removed or post a message here!
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[Landru]

Where was the outrage when recently the robed thugs came within two measly votes of redefining the Constitution's 2nd Amendment? *2*

Clearly an attempted coup D'etat effectively overthrowing our entire Constitution. Easily the most serious & alarming usurpation to date, by anyone or thing.

Certainly those who did take notice aren't nearly enough to make a difference, stop this crap dead in its tracks.

Now *they* noticed the lack of outrage, must've been quite an empowering experience.
Means they will be back again for the 2nd -- when *conditions* improve.
And next time they will succeed.

Shortly thereafter the other Amendments will fall like dominoes, and why not?
What or who can stop them?

[EdReform]

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