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]

Human beings are not property. You can't sell your self into slavery anymore in this country. Nor should you be allowed to pimp yourself out.

[Cultural Jihad]

There is no such thing as a right that makes someone else give up THEIR right to life, liberty, and property.

SELF-PRESERVATION. If their behavior destroys our society, then we have the right to forbid their behavior. If people are going to go out and commit sex-acts, that result in their getting diseases of all kinds, that pollute our blood supply, that bankrupt our health research and free health care system, we have a RIGHT to forbid their behaviors.

If people are going to try to engage in behaviors that wreck the family, which is the bedrock of our society, then we have the RIGHT to forbid those behaviors that do that. We have a right to have laws against unmarried couples living together. We have the right to have laws against adultery, because adultery wrecks families. Who supports the children? How are the children taken care of?

We have a right to preserve ourselves and our society. When people engage in behaviors which are destructive to society, then we have a right to forbid those behaviors. We don't have to sit around and allow our society to be destroyed by a lot of self-indulgent fools, who can't see beyond tomorrow, who are too blind to see the effects of their actions, who live only for instant gratification. Who cares what happens afterwards? Well, WE care, because we have to pay the consequences.

Society can make those kinds of determinations. We can just look around and see all the terrible effects, and say: "No more! We can't afford it! We want our society to continue! We have children coming up! We have grandchildren! We want them to have a society to live in, too!"

[CarolinaGuitarman]

"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."

Anybody who claims to know what God wants, and who demands that everybody else follows these commands, is not to be trusted with the reins of power.

"but that's no excuse to say the Founders were the equivalent of the Taliban."

I said no such thing, I said,

"...their insistence that laws adhere to the Bible is no different than the Taliban demanding that the Koran be the final arbiter of law."

The inclination to demand that your religious beliefs are to be forced on others even when the others are not infringing on your rights has the same roots for anybody who tries to enforce such a belief. It is the need to control other people, it is the source of collectivist ideology. For the most part the Founders were able to restrain this impulse, but not completely. They were the best men that have ever been produced in politics, but they were not perfect and I refuse to deify them when I disagree with something they say.

"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."

No, it was mostly a recognition that our rights are natural rights that precede Constitutions and governments.

[CarolinaGuitarman]

"Human beings are not property. You can't sell your self into slavery anymore in this country. "

I own myself, I am my OWN property. That is an inalienable right, one I cannot give up even if I wanted. Since I own myself, I and I alone am responsible for my wellbeing. If you want other people to own you that's your problem. Self-ownership is the foundation of all other property rights, without it we have none.

[Tailgunner Joe]

Without God there is no law and no morality.

[Tailgunner Joe]

You are NOT property, You do NOT own yourself, and you may NOT do whatever you wish with yourself. You are a human being, not chattel. You won't find anything about "self-ownership" in the Constitution.

[PhilipFreneau]

Thomas Jefferson wrote: "On every question of construction [of the Constution], 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".

Remember this quote every time some leftist liar claims the Democratic Party is the party of Jefferson.

[CarolinaGuitarman]

"If their behavior destroys our society, then we have the right to forbid their behavior."

You have no rights as *society*, only as individuals.

"If people are going to go out and commit sex-acts, that result in their getting diseases of all kinds, that pollute our blood supply, that bankrupt our health research and free health care system, we have a RIGHT to forbid their behaviors."

So if people are stupid and smoke, or drink, or overeat, we can stop that too? Where does the power to control other people end? Just because the government has overstretched its powers by developing a welfare state doesn't mean that they have the power to control everything we do. -What you are arguing is exactly what the welfare statists have always wanted; make the consequences of an act a public responsibility so that the public will demand that otherwise private behavior can be controlled by the state. The collectivist goal is to make every act a public one.

"If people are going to try to engage in behaviors that wreck the family, which is the bedrock of our society, then we have the RIGHT to forbid those behaviors that do that."

There is no such entity as *The family*, there are only individual families. It is not possible to destroy *the family* as it does not exist. You only have a right to forbid someone from running your family.


"We have a right to have laws against unmarried couples living together."

Only if you think it is moral to initiate force against someone.

"When people engage in behaviors which are destructive to society, then we have a right to forbid those behaviors. We don't have to sit around and allow our society to be destroyed by a lot of self-indulgent fools, who can't see beyond tomorrow, who are too blind to see the effects of their actions, who live only for instant gratification. Who cares what happens afterwards? Well, WE care, because we have to pay the consequences."

Only under tyrannical laws is someone other than the individual responsible for their actions. Only when every act is a public act is such tyranny possible.

"Society can make those kinds of determinations. We can just look around and see all the terrible effects, and say: "No more! We can't afford it! We want our society to continue! We have children coming up! We have grandchildren! We want them to have a society to live in, too!"

In a free society every individual would have to face the consequences of their actions, and would not be able to initiate force on someone else to make the other person or group pay for what the individual did. Nobody has a right to health care, education, a job, the necessities of life.
Freedom comes with responsibility.

[CarolinaGuitarman]

John Locke disagreed with you. He said:

"Every man has a property in his own person; nobody has any right but to himself….” Two Treatises on Government

As did Jefferson:

* Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance.
o Legal Argument (1770)

or

"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness;"

What do you think the right to life means? It means the right to OWN your life. It is the first property right. The right to life is more than just the right not to be killed. It is the right to live your life as you want as long as it doesn't infringe other's rights.

If you believe we don't own ourselves, you have necessarily placed that ownership in *society*, to be used for whatever purpose the Mob wishes.


"You won't find anything about "self-ownership" in the Constitution."

Because it was already a cornerstone of their ideas about property. There is no property rights without self-ownership.

"nor shall any state deprive any person of life, liberty, or property, without due process of law;"

My life is MY property, to be used as I wish as long as I do not deprive anybody else of their life, liberty, or property. And I will defend that property with the life of anybody who tries to use me as a means to their ends if it came to it.

[CarolinaGuitarman]

"Without God there is no law and no morality."

Only if you don't think there is a rational basis for morality.

[Tailgunner Joe]

If you believe we don't own ourselves, you have necessarily placed that ownership in *society*, to be used for whatever purpose the Mob wishes.

Wrong. This is a false dichotomy. I am not the property of the state, of society, or of anyone else. Property can be bought and sold. People can't.

[Tailgunner Joe]

Only if you think that God is irrational. I don't and neither did the Founders.

[Tailgunner Joe]

"Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite he placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot he free. Their passions forge their fetters." - Edmund Burke

[Tailgunner Joe]

What do you think the right to life means?

The Right to life, like liberty, is inalienable. Just as we may not choose to relinquish our liberty and sell ourselves, nor may we relinquish our right to life and choose to die.

[CarolinaGuitarman]

"Wrong. This is a false dichotomy. I am not the property of the state, of society, or of anyone else. Property can be bought and sold. People can't."

Your denial of your self-ownership demands that SOMEONE ELSE has a claim on your life, regardless of what you want. You feel that the state can make up laws to control you even when your actions don't initiate force against anybody. You have given the state permission to make you a slave. Or perhaps you think you will be the slave master? Either way, it is collectivist and antithetical to the Constitution. As Jefferson and Locke would have said too. (Remember, they both believed in the principal of self-ownership).

Here's an example of self-ownership.

I go to work. I give the company my time and effort. I get paid. My life has been sold to the company for those hours I worked. I have given them my property (myself for those hours) for compensation. It was an exchange of goods (a voluntary one one both ends). They have not enslaved me because I made a contract with them for my wages, and they cannot force me to continue working there if I choose to quit. (There may be legal ramifications if I break my contract and owe them money).

[Skywalk]

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

---

THat's your worst post yet, CJ. And that's saying a lot. How you haven't been banned already, I do not know.

This post basically gives the government cart blance to intervene in every matter to any degree so that you can be 'happy' that others aren't suffering. In fact, it is as asinine as a right to fulfillment and emotional contentment--impossible and requiring the imposition of tyranny to even begin to 'enforce.'

[CarolinaGuitarman]

"The Right to life, like liberty, is inalienable. Just as we may not choose to relinquish our liberty and sell ourselves, nor may we relinquish our right to life and choose to die."

Except that we own ourselves and have a right to live or not live if we wish. I do not a priori owe anybody my life. If I believe my life is no longer worth living, but I am forced to continue living despite my wishes, then my life no longer belongs to me, but to the Mob. I live by permission of the state, not as a right.

[Skywalk]

Have you actually ever READ the Founders or those that influenced their beliefs?

They SPECIFICALLY REFER to ownership of the self.

Please keep it up, the comedic value is inestimable.

[Tailgunner Joe]

No, I deny that human being are property. That means no one owns me.

I don't think that prohibiting sodomy is the same as enslavement. People who have fought real slavery should be offended at the notion that such depravity should be compared to their God-given rights to life liberty and property. Every state had laws against sodomy when the Constitution was ratified. I don't think the Founders had any problem with that and unlike you, I do not think they were tyrannical collectivist slavemasters.

Your work is not your self. Work is not slavery, freedom is not oppression and property is not theft.

[Tailgunner Joe]

If you want to kill yourself, then you are not of sound mind, not fit to make decisions for yourself and you should be watched closely to make sure you are prevented from hurting yourself.