Strict vs. Liberal Construction of the Constitution: A Bogus Issue

Vanity | 06 July 2005 | PatrickHenry (vanity)

[PatrickHenry]

When the Senate conducts hearings to confirm judicial appointments, there should be no controversy over "strict construction," "liberal construction," "original intent," "living document," etc." Consider the plain wording of the Constitution:

THE UNITED STATES CONSTITUTION: Article. VI.

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

To me, it seems very simple. The Constitution, by its terms, and by the oath required of all office holders (including judges) is the "supreme law of the land," and is unquestionably binding on the judiciary. The Constitution contains its own rules of construction, which are also binding on the judiciary:

1. The list of rights enumerated in the Constitution is not to be construed as a complete list.

2. The list of powers delegated to the federal government is a complete list.

In other words, it's not a matter of personal choice. All judges are bound by oath to use liberal construction with respect to our rights, and strict construction when it comes to the government's powers. Anyone appointed to the judiciary should readily agree with this, or he's unqualified to hold office.

[Tailgunner Joe]

The problem is that the "right" to do things like commit crimes against nature or murder your innocent baby is not just excluded from the Constitution, it's also excluded from every sane moral system of law in the history of western civilization. Your sixties "free love" version of morality is simply not rooted in law, morality, or history.

The Constitution does not say that if a power is not included in it, it doesn't exist. It says that if a power not specifically forbidden to the states is not included in the Constitution, then it is reserved to the states.

[CarolinaGuitarman]

"Go directly to jail. Do not collect $200, dodo."

There is NO preamble to the DOI.


"http://www.law.indiana.edu/uslawdocs/declaration.html"

I didn't say that the DOI didn't contain the list of rights you mentioned. I said it has no preamble, which is TRUE.


What you haven't done is shown where in either the federal or the state constitutions the government has the power to force someone to refrain from an act that only concerns them and does not infringe on anybody else's rights. You can't.
Those powers only exist in tyrannies. Like the one you want to establish here. You're the intellectual Dodo, and your kind of ignorant boobism will be a thing of the past in proportion that people start reading the constitution.

[Tailgunner Joe]

All a state has to do is pass such laws in accordance with their own Constitutions. I can assure you that many State Constitutions give the state every authority to ban prostitution, for example, a "victimless crime" you think it is immoral to restrict. You libertarians want to turn us into a nation of whores.

The Federal Constitution authorizes the creation of Post Offices for example. What does that have to do with rights? The right to speedy delivery?

[Tailgunner Joe]

http://www.google.com/search?hl=en&lr=&biw=780&q=%22declaration+of+independence%22+preamble&btnG=Search

[Cultural Jihad]

Apparently your HTML skills are as bad as your knowledge of American founding documents.

Take your pick

[CarolinaGuitarman]

"People have a right to discourage unneeded suffering and death."

Write pamphlets. Preach on street corners. Try to convince people through discourse. Your right to discourage *unneeded suffering and death* ends when you try to stop someone from doing something that doesn't infringe your rights. That is what the rule of law and the Constitution is about; that is the ONLY way capitalism (the only moral economic policy) can work.


"since there is little to nothing about the Constitution in their moral-liberal philosophy"

You aren't arguing from the Constitution, you are arguing from your feelings and what you want others to do.

[CarolinaGuitarman]

"The problem is that the "right" to do things like commit crimes against nature or murder your innocent baby is not just excluded from the Constitution, it's also excluded from every sane moral system of law in the history of western civilization. Your sixties "free love" version of morality is simply not rooted in law, morality, or history."

Abortion is murder, that is a clear case of depriving another of their right to life. There is no such thing as a *crime against nature*; that is an invention of men. In order to commit crime, you have to infringe someone's rights. Nature has no rights, it is not a person. Your version of government control does unfortunately have roots in history, law and the moral systems of most of the world.
What it doesn't have roots in is the Constitution.

[Tailgunner Joe]

Never heard of the "Laws of Nature and Nature's God" then? I'll take the Declaration of Independence and the Laws of Nature and God over your lawless sodomite whoredom, thanks anyway.

[CarolinaGuitarman]

"Apparently your HTML skills are as bad as your knowledge of American founding documents."

Good to see that you are working hard finding the lines in the Constitution that gives the government the power to stop someone from doing something that infringes on nobody's rights. Pointing out a mistake in my cut and paste abilities I guess is as good as you are going to do.

http://www.law.indiana.edu/uslawdocs/declaration.html

[Cultural Jihad]

When you needlessly suffer, it infringes on *my* right to pursue happiness, being saddened at the needless sufferings of others.

[Tailgunner Joe]

The Stylistic Artistry of the Declaration of Independence - The text of the Declaration can be divided into five sections--the introduction, the preamble, the indictment of George III, the denunciation of the British people, and the conclusion.

[CarolinaGuitarman]

"Never heard of the "Laws of Nature and Nature's God" then? I'll take the Declaration of Independence and the Laws of Nature and God over your lawless sodomite whoredom, thanks anyway."

Believing in Laws of nature is not the same as believing in crimes against nature. Laws of nature means that the universe is orderly. Crimes against nature means that someone doesn't know what crime is. Crime can't be committed against nature, because nature has no rights.

You call my position *lawless*, which it isn't but that is the usual faleshood against anybody who wants restrictions on government power. Your position is antithetical to the idea of individual rights. You want any mob to be able to coerce people to act as they wish, regardless of whether it is any of their business. You call that *freedom* when it is the definition of tyranny. You can take the Declaration, but only by destroying what it stands for. I'll take it and the Constitution as it is, with limits on government power.

[CarolinaGuitarman]

"When you needlessly suffer, it infringes on *my* right to pursue happiness, being saddened at the needless sufferings of others."

So anything that makes you *deeply saddened* now falls under government control? Your right is the PURSUIT of happiness, not the state of happiness. There is no such thing as a right that initiates force on somebody else. If I do something that makes you sad but doesn't infringe on your life, liberty, or property, tough crap on you. Get a box of Kleenex and go cry somewhere else.

[Tailgunner Joe]

Wrong. I believe in inalienable God-given rights that can't be taken away by the state, the mob or anyone else. I just don't think sodomy, prostitution, suicide, cannibalism, etc. are God-given rights.

Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. - John Locke, Two Treatises on Government

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Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.

This will of his Maker is called the law of nature.

This law of nature, 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; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. - William Blackstone, Of the Nature of Laws in General

[CarolinaGuitarman]

Those are divisions that are arbitrary and were made up by someone after the fact. They are not formal structural divisons. The Constitution on the other hand has a formal preamble.

[Cultural Jihad]

I believe in inalienable God-given rights that can't be taken away by the state, the mob or anyone else. I just don't think sodomy, prostitution, suicide, cannibalism, etc. are God-given rights.

Exactly. Furthermore, the libertarian ideologues would rob people of their right to live in the kind of society they want to live in.

[CarolinaGuitarman]

"Wrong. I believe in inalienable God-given rights that can't be taken away by the state, the mob or anyone else. I just don't think sodomy, prostitution, suicide, cannibalism, etc. are God-given rights."


I don't believe in God-given rights, I believe in natural rights. *God-given* is another name for *created by men in power*. Natural rights are a result of our nature as Man. They don't depend on the words of any holy book, which are the arbitrary works of man. They depend on our living in a universe that requires us to use reason to survive. As great as Locke and Blackstone were in other areas, their insistence that laws adhere to the Bible is no different than the Taliban demanding that the Koran be the final arbiter of law.

[Tailgunner Joe]

Our rights are inalienable because they come not from men, or constitutions, or social contract, or "nature" (the law of the jungle), but because they come from the hand of God. Anyone who does not understand this is not to be trusted with the reins of power.

[Tailgunner Joe]

You don't have to believe in the principles that this nation was founded upon, namely that rights come from God, but that's no excuse to say the Founders were the equivalent of the Taliban. I guess the Declaration of Independence with its reference to the Creator and the Supreme Judge of the World is nothing more to you than a fundie jihadist fatwa.

[CarolinaGuitarman]

"Furthermore, the libertarian ideologues would rob people of their right to live in the kind of society they want to live in."

There is no such thing as the right to initiate force against someone. There is no such thing as a right that makes someone else give up THEIR right to life, liberty, and property. The most fundamental property right is the right to own yourself. You would give yourself the power to tell someone how to use their property (themselves) when it did not infringe your rights to property, liberty, or life. Society is an abstraction for a collection of individuals, you don't *live in it*. There is no such thing as *societal* rights, only individual.