Kelo and the 14th Amendment: Exploring a Constitutional Koan

Vanity | 8/21/05 | Mark Edward Vande Pol

[Carry_Okie]

By natural law, are you referring to common law?

Please elaborate.

[MamaTexan]

Yes, to an extent.

Here is the current legal definition of natural law from Law.com :

natural law:
n. 1) standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will. The biblical Ten Commandments, such as "thou shall not kill," are often included in those principles. Natural law assumes that all people believe in the same Judeo-Christian God and thus share an understanding of natural law premises.
2) the body of laws derived from nature and reason, embodied in the Declaration of Independence assertion that "all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of happiness."
3) the opposite of "positive law," which is created by mankind through the state.

[MamaTexan]

Sorry, forgot to add these to my last post:

Christianity is part of the Common, or Natural Law. Therefore it is Christianity that is the basis of our government. Religion of any other type is not synonymous with the American experience of Liberty!"

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God . . . is the promulgator as well as the author of natural law.

Justice James Wilson, a signer of the Declaration, the Constitution, Original Justice on the U. S. Supreme Court, and the father of the first organized legal training in America.

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[T]he laws of nature . . . of course presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.

John Quincy Adams

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The law of nature, “which, being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this.”

Alexander Hamilton, Signer of the Constitution

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The “law of nature” is a rule of conduct arising out of the natural relations of human beings established by the Creator and existing prior to any positive precept. . . . [These] have been established by the Creator, and are, with a peculiar felicity of expression, denominated in Scripture, “ordinances of heaven.”

Noah Webster, Judge and Legislator

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Natural rights [are] the objects for the protection of which society is formed and municipal laws established.
Thomas Jefferson, letter to James Monroe, 1791

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[Carry_Okie]

I have my issues with the common law as regards the commons. It is relatively incapable of resolving mobile goods effectively. There is now a body of engineering science capable of resolving those issues.

I wrote a book about it.

[MamaTexan]

I have my issues with the common law as regards the commons

I can't see the connection between common law, taken mostly from Blackstone's Commentaries on the Las of England and the fact that government ALWAYS does things the most costly and back asswards way possible. :)

[Carry_Okie]

I can't see the connection...

There is one.

[rec]

"Do the President and the Senate have the lawful power to conclude treaties the scope of which entails enforcement powers that exceed those enumerated in the Constitution? If such can be proven, is said treaty void?

Hardcore. You made me have a "Goldwater flashback". :-?

[Carry_Okie]

It's an important question considering the power exercised in the name of environmental treaties.

[rec]

"Only to the degree that the Constitution allowed. If a law exceeded the authority granted to the national government, it was void."

Interesting point. And there were/are three branches of the Federal Government. Originally, which one had a "police force"?

None...

[rec]

My understanding of the commerce clause is that it was to preclude protective tariffs (or their equivalent) between states. Such could be considered a State transaction.

And there was a federal court system put in place to support that. If two states had a disagreement, they'd resolve in court instead of combat.

But now, the federal courts run around looking for cases. A bird might fly from one state to another so it's "interstate commerce"... indeed :(

[rec]

"(assuming it's not prohibited by their own constitutions)"

People seem to forget that each state has a constitution, which that State must obey.

[Carry_Okie]

As you peruse the thread, MamaTexan has some pertinent contriubtions that will interest you.

[Publius Valerius]

Frankly, MamaTexan's interpretation does seem to be awfully narrow

That's being mighty generous. Closer to absurd is more like it.

[rec]

"It's an important question considering the power exercised in the name of environmental treaties."

Indeed. And, last couple days, the media's been talking about "reintroducing" elephants and lions into Montana. I have a hunch that Ted Turner likes this idea, and his coyote idea has gotton pretty far....

Does the federal government have the "authority" to spend my tax dollars to try something that stupid? I'd hope not.

[Carry_Okie]

Closer to absurd is more like it.

Read a little further; she has a point. I haven't digested it all, so I haven't made a conclusion. I'll probably go back to Farrand and give it a look.

[Publius Valerius]

I've engaged her before on the subject. She plainly ignores anything that contracts her views (which is very nearly any piece of scholarship on the Constitution), including the Federalist Papers and the constitution itself. It is absurd.

Indeed, though, you are correct on another count: Madison notes in Federalist 42 that the point of the commerce clause was to create a free trade zone.

[Publius Valerius]

whoops, contrasts, rather.

[Carry_Okie]

Indeed, though, you are correct on another count: Madison notes in Federalist 42 that the point of the commerce clause was to create a free trade zone.

There is more to originalism than the majority (and better documented) Federalist opinion, as I am sure you know. One must go to the understanding of all those who ratified the Constitution, including those who held opposing understandings upon specific elements, or held reservations until the BOR was under construction. As you saw in the article above, such monority opinions can develop predominance after long periods of time.

[Publius Valerius]

Sure, but as far as the commerce clause goes, I don't think you'd find a lot of support for such a notion anywhere. It cripples one of the two main purposes of the federal government: ensuring, to the most reasonable extent possible, economic prosperity.

As far as the 14th Amendment goes, Berger, as mentioned above, as pretty much occupied the field. The article above (and its "citations," if one can call them that) make no reference to any real scholarship in the field whatsoever. It doesn't even make reference to the Congressional Globe, which the author can't even properly identify, referring to the Congressional Record, which didn't even begin publication until 1873! And I'm supposed to take him seriously?

The article attempts to portray Bingham as a crafty lawyer with a grand plan, but the debates show that Bingham was, at best, extremely sloppy and inconsistent, and at worst, an idiot.

Berger notes that in the debates surrounding both the Civil Rights Act and the amendments, members of Congress, including Bingham, were sloppy in referring to citizens or persons. The amendment itself appears to make a distinction (due process to persons, P&I to citizens) but the conduct of Bingham and others during the debates seems to imply that there was no distinction intended. Moreover, even the text of the Civil Rights Act itself is somewhat puzzling, using the term "inhabitants" at one point while on its face applicable only to citizens.

These fellows, such as the author of this article, just don't have the level of scholarship necessary to engage in a serious debate. There isn't any reference to the debate surrounding the Civil Rights Act or the 13th Amendment, which are absolutely key to understanding the 14th Amendment. It's a joke. It's not serious.

I'm going to bed. Maybe I'll talk more on the subject later. I don't know.

[inquest]

I'd dispute the notion that reading the congressional debates is "absolute key" to understanding the 14th amendment. Mostly what you'd need to read is Section 1 of the Civil Rights Act of 1866 (see #25 on this thread). That provides pretty much the entire context necessary for Section 1 of the 14th amendment. Everything else is really just icing on the cake.