Replies

It seems to me that the anti-Federalists were right. Lines 9-14 are precisely what has occurred with cases like Roe v. Wade, Wickard v. Filburn, and Bowers v. Hardwick. The Supreme Court created, in effect, law that tramples on the sovereignty of the states (a fear of the anti-Federalists) and makes the Federal government a tyrant.

It was particularly egregious in Roe, with the "penumbras" and "emanations" language used to create a "right" to abortion. In other words, the "spirit of the Constutution." That's equivalent to today's approach to the "living Constitution."

School me. Maybe I'm wrong here.

I would only say that it is disingenuous to start with the Constitution of 1787 plus the Bill of Rights, jump 230 years and shout “AHA, See, the Constitution is a framework for oppression!”

It is easy but deceptive to discuss the decline of liberty without visiting the post civil war amendments, the income tax, direct election of senators and FDR’s appointment of rubber stamp socialist Judges. With rare exception, [as in Roe and probably upcoming homo marriage] neither the FDR nor later courts made the law. The courts were last in line to reject Constitutional limits.

The people elected the Congressmen, Senators, and President who drafted and enacted Social Security, agricultural price supports, minimum wage laws, etc. A country based on the sovereignty of the people cannot long turn aside their collective will, and their will long ago was to begin abandonment of limited government.

When a debauched electorate prefers safety over freedom, places Radical Leftists in charge as in 1932, LBJ, 1976, and 2008, we cannot expect Federalist Society members to show up in the list of Presidential nominees.

"10 The power of construing the laws according to the spirit of the Constitution will enable that court to mold them into whatever shape it may think proper, especially as its decisions will not be in any manner subject to the revision or correction of the Legislative body.
"11 This is as unprecedented as it is dangerous."

Jefferson wisely warned that such a spirit should be deemed to be, "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it conform to the probable one in which it was passed."

Justice Hugo Black averred: "The public welfare demands that constitutional cases must be decided according to the terms of the Constiution itself, and not according to judges' view of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."(p. 262, "Our Ageless Constitution").

On Page 158 of the above-referenced work appears an essay entitled, "Do We Have a Living Constitution?" written by Dr. Walter Berns, in which he exposes and demolishes the so-called "living constitution" school that has so distorted the Founders' intentions as to their Constitution for a free people.

"The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent? To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are. "

Abel Upshur, Secretary of the Navy, 1841-43

He was EXACTLY right!