Posted on 06/02/2004 12:44:36 PM PDT by neverdem
The authors of the BOR weren't given to superflous prose. Those words are there for some reason. Why? What idea are they trying to convey, and what are the implications of that message?
I personally think the phrase comes from the relationship of the debate at the time to the militia powers of the new central government.
A good example of this concern, which implies the inclusion of that phrase, is a remark of George Mason:
"The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them...
Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army."
It's preferable to a Catch-22.
Irrespective of what what was said by the founders, since the 14th Amendment is now the law of the land, the first 8 amendments should be treated by the courts as having been incorporated given the wording of the amendment itself and the clearly stated intentions of its authors (particularly see how it goes directly opposite Dred Scott). I have already repeated excerpts from the Congressional Record which prove the original intent - see previous posts. The judicial theory of partial incorporation is a fig leaf for tyranny of the majority.
Ironically, the reasoning behind their intent proves the amendment, at present, more malignant than benevolent.
The 14th Amendment (XIV) was necessary to enforce the 13th. States were using their police powers to not only deny basic rights, but to virtually imprison the freed slaves in a condition not unlike their prior one. XIV remedied their predicament at the high cost of altering the structure of our government: States no longer could decide what limits were practical for our rights, as they were abusing this power to subjugate blacks.
Today, almost 140 years later, we have come full circle. The Federal government is the entity which denies us our rights, and thanks to XIV, where we must find redress. It is no more logical for us to appeal to the SCOTUS than it was for freed blacks to appeal to their State courts. California, and the other left-wing States, populate the Fed judiciary with judges who are just as sure to approve of infringements on the RKBA as they would be sitting on a State bench.
Tyranny of the majority indeed. The only solution I see is to repeal XIV, or reduce the scope of its influence.
Somewhat.
I'm not sure I understand your answer.
It seems to me that the Federal government is either reading things into the Commerce Clause or they are not. I don't see how an interpretation can be somewhat incorrect.
Judges use "doctrines" to try to match law to actual cases, just as mechanics use "rules" instead of actual physical laws to work on machinery.
Why isn't using a "doctrine", as opposed to the actual words of the Constitution, an example of living constitutionalism?
I think "substantial effects" is more a poor "doctrine" than a deliberate attempt at living constitutionalism.
What's the difference?
Most of the blame for the Commerce Clause's abuse has to be laid at the feet of the elected branches IMHO.
How could substantial effects be an abuse but not an example of living constitutionalism?
"The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best."
-Thomas Jefferson to Joseph C. Cabell, 1816.
I submit that the difference lies in how subjective you have to get to get from A to B. You are free to disagree.
I personally think the phrase comes from the relationship of the debate at the time to the militia powers of the new central government.
A good example of this concern, which implies the inclusion of that phrase, is a remark of George Mason: "The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them... Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army."
Sounds like Mr. Mason believed the national government should have some active role or interest in making sure the militia stays viable - you cannot "neglect" what is not your responsibility. How do you suppose they might go about doing that?
The New Deal Commerce Clause came about not by finding words in the Constitution that weren't there, but by finding meanings in the words that aren't part of the idea it was intended to convey.
I think of living constitutionalism as a judicial power grab rather than a legislative or executive one. The commerce and welfare clauses' abuses have been led by the elected branches instead of the judiciary.
I don't know how far I could show that is a useful distinction to make but I don't want to call every abuse of Constitutional powers "living constitutionalism".
Mason's remarks are a complaint he made at the Virginia Ratification Convention about the Constitution expressly giving the new national government an 'active role' in the State militias. Mason's concern was that those new powers it would have over the militia would allow it to disarm them.
That's why he wanted an amendment to protect the state militias.
To the everlasting pain of the "collectivists" Madison answered Mason's, and other anti-federalists', concern by barring the federal government from disarming "people" instead of "the militia".
The legislative and executive branches could not get away with Commerce Clause abuse if the judicial branch honored its oath to the Constitution. They are certainly co-conspirators.
You wrote:
Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.
Isn't that what all three branches have done with the "substantial effects" doctrine?
I don't know how far I could show that is a useful distinction to make but I don't want to call every abuse of Constitutional powers "living constitutionalism".
Do you agree that the substantial effects doctrine is an unconstitutional way to interpret the Commerce Clause?
Here again is George Mason at the Va. Ratification Convention:
"...Let us advert to the 6th article. It expressly declares, that "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."
Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?
The bill of rights is a part of our own Constitution. The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up.
If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
There is just no way to turn any part of the BOR into a grant of more power to the federal government.
And just what was this "active role" they were given?
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
Would you like a link to the Constitution?
Not necessary. In your opinion, how well have they carried out their responsibility?
So Mason was wise to be concerned wasn't he? (Amazing fellow that George Mason.)
Now the question is, is doing something that is an obvious abrogation of a constitutionaly mandated responsibily by Congress unconstitutional?
They don't have to exercise it, as Mason knew.
You can't "neglect" what isn't your responsibility. And I don't believe in power without responsibility.
The national defense has been met with an army.
There is no requirement in the Constitution that the federal government support the state militias. Mason noticed that.
And yet seemed to have some sense of an implicit responsibility that went with that power. Or was that a penumbra?
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