'Common Misunderstanding’ of Constitution Has Led to ‘Serious Erosion’ of Freedom [Video]

Princeton University professor Robert George contended in a new video published online Tuesday that a “common misunderstanding” has led to a “serious erosion” of freedom in America.

George, a professor of jurisprudence, asked at the outset of the video: “How does the Constitution of the United States seek to preserve liberty and prevent tyranny?”

The professor said that most of his students would likely answer that the founders passed the Bill of Rights, leaving the Supreme Court with the power to enforce those rights.

George contended that answer was wrong, saying, “That misunderstanding has led to a serious erosion of our freedom.”

Instead, the professor argued that the Bill of Rights were “hotly debated” because many feared it “would actually undermine the main protections against tyranny.” According to George, the Constitution’s call for a “limited nature of the national government” was itself the chief protection against tyranny.

“The Constitution did not envision a national government of general jurisdiction … but rather a government of enumerated and delegated powers. A government that had authority over only specific areas of American life,” he said, adding that “all other powers” were reserved to the states or “American people themselves.”

George said that the Ninth and Tenth Amendments have failed to curtail the growth of the federal government and that the Supreme Court has failed to keep the other two legislative and executive branches in check, resulting in a loss of freedom for the American people.

You have previously expressed your distaste for Constitutional provisions that are a bit vague. I think you view them all as mistakes. In fact, the vagueness is nearly always intentional.

It was in the eighteenth century that the term "due process of law" was placed in our Constitution. The idea was to provide protections (somewhat loose protections, but protections nonetheless) of life, liberty and property from arbitrary actions of the new central government.

About eighty years later, the same term was included in the new 14th Amendment to protect the same interests from arbitrary actions by states. The precise boundaries of those protections were not defined by the draftsmen, but they wanted to provide future decision-makers with some ammunition that might prove to be useful in protecting those interests.

I think that it's safe to say that neither the eighteenth century draftsmen of the 5th Amendment nor the nineteenth century draftsmen of the 14th Amendment imagined that in the twentieth century, some future decision-makers would utilize the "due process of law" clause to protect abortions from federal or state prohibitions. For that reason, I am reluctant to blame either the eighteenth century draftsmen of the 5th Amendment or the nineteenth century draftsmen of the 14th Amendment for abortion decisions made by 20th century judges.

In any event, I trust that you can see the difficulties in pinning abortions on Lincoln. Even if you blame the draftsmen of the "due process clause" rather than the twentieth century judges who (I believe) misinterpreted that clause, you are stuck with blaming draftsmen who had finished drafting the provision nearly two decades before Lincoln was born.

And, as to all Constitutional draftsmen, give some thought about why you might occasionally find it sensible to include a little vagueness and wiggle-room for future leaders in some of the provisions. There is a difference between a Constitution designed to provide a framework for a government and a month-to-month rental agreement. Just think about it a bit sometime.

[Sorry about the delay in responding, but earlier today I learned that somebody had a brainstorm about a more or less minuscule improvement that could be made to something I thought was plenty good three weeks ago.]

I am reluctant to blame either the eighteenth century draftsmen of the 5th Amendment or the nineteenth century draftsmen of the 14th Amendment for abortion decisions made by 20th century judges.

Again, have you read the 14th amendment? It is an incomprehensible hash compared to the 5th. The writing alone indicts it as bad law.

In any event, I trust that you can see the difficulties in pinning abortions on Lincoln.

When you start a fire, you cannot predict what will get burned, you only know that something will.

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