- I think you misunderstand my questions. I agree with your statements in your article.You said “Scholar are arguing on both sides of the questions but there appears to be just two schools of thought - it is a living document which the Congress and the courts can change at will - or it is set in time and place document that means what it says and says what it means.”It is the lefts argument of a “living document Constitution” that my questions point to. I intended to point out the difference of a “Contract Constitution” view from a “Living document” Constitution. Too many people do not realize the problems with a contract that can be modified by only one side (The service provider) and not being able to cancel by the receiver of services. It is this concept that people accept with modern communications that lends credence to the Living contract idea.God Bless.
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- There is no such thing as a UNILATERAL CONTRACT . . . that would be called an agreement of one. The concept of a contract is an bilateral agreement between two or more parties. The terms of the contract are CONTAINED in the four corners of the document. No single party can modify the contract so the Federal government can not alter the terms without the 3/4th requirement in the Contract.There is no such thing as a living or evolving contract for no one would be able to define the terms as the other would say well that just changed just now . . . clearly that is a fallacy that can not stand on it's own - a construct of a strawman so they can avoid the real language.
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- There is no such thing as a living or evolving contract for no one would be able to define the terms as the other would say well that just changed just now . . . clearly that is a fallacy that can not stand on it's own - a construct of a strawman so they can avoid the real language.Perhaps you have not read the fine print of a variable rate credit card, the card provider retains the right to modify the contract at any time and assume your consent by your continued use of the card. Same with Cell phone, cable companies, satellite providers and internet providers.You are right it is an agreement of one, you must accept their terms or be denied service, an original reason for Control of “Public services” and anti-monopoly laws. It, like any con, cannot stand on its own without the willing participation of the people being fleeced.Here the problem is willing participation of the people. That is the problem we are faced with.God Bless.
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- That is not a unilateral contract you agree to the terms as defined .. you agreed to let them change some variables but they can not change the main body of the contract. In other words if you did not agree to allowing them to change prices they could not do that. So, there are still the elements of a contract both have agreed and given valuable consideration and all changes are within the four corners of the agreement. All parties can contract to do what ever they can agree on and with mutual signatures it is legal. The only exception I am aware of is illegal activities or no one can contract away their constitutional rights.A lose definition of a partnership might be an agreement among two or more parties of legal age and mental capacity.
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- If a Board of Directors decided an issue which ran contrary to the employees wants, would that be a unilateral contract ? It is binding and sure as hell wasn't agreed on by the emplyees.You both are right - the government has assumed the roll only private sector entrpreneurs and corp. leadership should be allowed to have. The Judicial Branch has chimed right in with their political opinions, and the legislative branch has been AWOL for a long, long time ! I will say this again - The states and the people have just begun to take back what has been theirs all along.Jefferson as right - we must stand up to an oppressive government whenever it tramples on us. " You can't fight City Hall " is the lamest adage ever ! Tell that to the Founders. Tell that to Lech Walesa or Baklav Havel. Tell that to the Bolsheviks. We have been chemically neutered somewhere down the line. It's time to grow a set.
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- John,would that not depend if the employees were at will or Contracted employees. I have been contracted at the Corporate level and all the board could do was terminate the contract but they had to pay me per the terms so it was bilateral. i on the other hand if I took the money and had a noncompeting clause, I would not be allowed to work in that particular business until the clause expired. There is some new case law on this so I am not sure the contract can keep a individual from gainful employment?
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- Mangus, The people I was referring to are the average Joes who do not have a contract. Employees at will, I believe is the correct legal term. They make up by far the majority of private sector employees. We are watching the unions in a death spiral now, and we can finish the job when we take the public sector out of this equation. FDR knew enough to make public sector unions illegal. We should too.The heroes that fight fires and protect the community can make contracts without unionization. They are part of their communities, and should want to see the best for every member of that community. My town had a volunteer fire dept. until 1985. After that half of the firefighters were unpaid volunteers. The respect and thanks from the community was all they asked. They nor their families ever went without anything. The rest of the town made sure of that.
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- The Framers left it up to the Courts to decide the final solutions to arguements. It is this " open ended clause that has been our problem. Marbury V. Madison gave the Courts Judicial Review. 99% of what we consider law of the land today is not specifically written in the original text of the constitution. It was only an outline. Art. III, Sec 2 states clearly the all powerful domain given this branch. The entire Article is intentionally ambiguous as to any specific area being contested. It was McCulloch v. Maryland that made the Commerce Clause open ended. How many things can be tied to commerce ? Everything !As the " Heritage Guide to the Constitution " points out - " Since 1787, the central meaning of " judicial Power " has remained remarkably consistant: neutrally deciding a case by interpreting the law and applying it to the facts, then rendering a final and binding judgement. The most important cases in Article III are those " arising under he Constitution and Laws of the United States." This Clause comliments Article VI, which provides that " this Constitution, and the Laws of the United States which shall be made in pursuence thereof...shall be the Supreme Law of the Land. " There was a general understanding that this language and the very nature of a written Constitution ordained by " The People, authorized judicial review of the constitutional validity of governent actions. When I called the actions of some of the federalists insincere, here is exhibit A.For example, in The Federalist No. 78, Hamilton reasoned as follows: (1) courts have a duty to resolve cases impartially according to the law; (2) the Constitution is the fundamental and supreme law in which " the People " explicitly limited the political branches; and (3) therefore, judges must follow the constitution instead of a clearly contrary ordinary law. Hamilton Anti-Federalist rival, " Brutus ", however, expressed the fear that federal judges would naturally aggrandize power to themselves and to the central government. " In their decisions", he said, " they will not confine themselves to any fixed or established rules. " " This power will enable them to mold the government into almost any shape they please."It was Chief Justice John Marshall ( in Marbury ) who repeated Hamilton's analysis and then held that Congress, by forcing the Court to assume original jurisdiction over an action involving a writ of mandamus, had plainly violated limitations on such jurisdictions prescribed in Art. III. The Court expressly cabined it's powers to examining "judicial" issues of law rather than political questions committed by the constitution to the executive brach's discretion. In lay terms, the Supreme Court seperated itself from the constitutional constraints, and focused on " interpreting the laws of the land. " Brutus" was right !I disagree with your label, " tie down" the government in Art. I, Sec 8. They seperated the powers as fairly as they thought possible here, but there is no real parameters to stay between in reguard to how much of these individual powers each could use. This once again is a Judicial Branch decision if challenged.The Framers were brilliant men Mangus, and they made the most perfect document for the good of the common man in history. But it can be only as perfect as man himself.
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- That is not a unilateral contract you agree to the terms as defined .. you agreed to let them change some variables but they can not change the main body of the contract. In other words if you did not agree to allowing them to change prices they could not do that. So, there are still the elements of a contract both have agreed and given valuable consideration and all changes are within the four corners of the agreement. All parties can contract to do what ever they can agree on and with mutual signatures it is legal. The only exception I am aware of is illegal activities or no one can contract away their constitutional rights.A lose definition of a partnership might be an agreement among two or more parties of legal age and mental capacity.
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- If a Board of Directors decided an issue which ran contrary to the employees wants, would that be a unilateral contract ? It is binding and sure as hell wasn't agreed on by the emplyees.You both are right - the government has assumed the roll only private sector entrpreneurs and corp. leadership should be allowed to have. The Judicial Branch has chimed right in with their political opinions, and the legislative branch has been AWOL for a long, long time ! I will say this again - The states and the people have just begun to take back what has been theirs all along.Jefferson as right - we must stand up to an oppressive government whenever it tramples on us. " You can't fight City Hall " is the lamest adage ever ! Tell that to the Founders. Tell that to Lech Walesa or Baklav Havel. Tell that to the Bolsheviks. We have been chemically neutered somewhere down the line. It's time to grow a set.
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- John,would that not depend if the employees were at will or Contracted employees. I have been contracted at the Corporate level and all the board could do was terminate the contract but they had to pay me per the terms so it was bilateral. i on the other hand if I took the money and had a noncompeting clause, I would not be allowed to work in that particular business until the clause expired. There is some new case law on this so I am not sure the contract can keep a individual from gainful employment?
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- Mangus, The people I was referring to are the average Joes who do not have a contract. Employees at will, I believe is the correct legal term. They make up by far the majority of private sector employees. We are watching the unions in a death spiral now, and we can finish the job when we take the public sector out of this equation. FDR knew enough to make public sector unions illegal. We should too.The heroes that fight fires and protect the community can make contracts without unionization. They are part of their communities, and should want to see the best for every member of that community. My town had a volunteer fire dept. until 1985. After that half of the firefighters were unpaid volunteers. The respect and thanks from the community was all they asked. They nor their families ever went without anything. The rest of the town made sure of that.
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- The Framers left it up to the Courts to decide the final solutions to arguements. It is this " open ended clause that has been our problem. Marbury V. Madison gave the Courts Judicial Review. 99% of what we consider law of the land today is not specifically written in the original text of the constitution. It was only an outline. Art. III, Sec 2 states clearly the all powerful domain given this branch. The entire Article is intentionally ambiguous as to any specific area being contested. It was McCulloch v. Maryland that made the Commerce Clause open ended. How many things can be tied to commerce ? Everything !As the " Heritage Guide to the Constitution " points out - " Since 1787, the central meaning of " judicial Power " has remained remarkably consistant: neutrally deciding a case by interpreting the law and applying it to the facts, then rendering a final and binding judgement. The most important cases in Article III are those " arising under he Constitution and Laws of the United States." This Clause comliments Article VI, which provides that " this Constitution, and the Laws of the United States which shall be made in pursuence thereof...shall be the Supreme Law of the Land. " There was a general understanding that this language and the very nature of a written Constitution ordained by " The People, authorized judicial review of the constitutional validity of governent actions. When I called the actions of some of the federalists insincere, here is exhibit A.For example, in The Federalist No. 78, Hamilton reasoned as follows: (1) courts have a duty to resolve cases impartially according to the law; (2) the Constitution is the fundamental and supreme law in which " the People " explicitly limited the political branches; and (3) therefore, judges must follow the constitution instead of a clearly contrary ordinary law. Hamilton Anti-Federalist rival, " Brutus ", however, expressed the fear that federal judges would naturally aggrandize power to themselves and to the central government. " In their decisions", he said, " they will not confine themselves to any fixed or established rules. " " This power will enable them to mold the government into almost any shape they please."It was Chief Justice John Marshall ( in Marbury ) who repeated Hamilton's analysis and then held that Congress, by forcing the Court to assume original jurisdiction over an action involving a writ of mandamus, had plainly violated limitations on such jurisdictions prescribed in Art. III. The Court expressly cabined it's powers to examining "judicial" issues of law rather than political questions committed by the constitution to the executive brach's discretion. In lay terms, the Supreme Court seperated itself from the constitutional constraints, and focused on " interpreting the laws of the land. " Brutus" was right !I disagree with your label, " tie down" the government in Art. I, Sec 8. They seperated the powers as fairly as they thought possible here, but there is no real parameters to stay between in reguard to how much of these individual powers each could use. This once again is a Judicial Branch decision if challenged.The Framers were brilliant men Mangus, and they made the most perfect document for the good of the common man in history. But it can be only as perfect as man himself.
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- John,My argument would be one of ORIGINAL CONSTRUCT - the CONSTITUTION SAYS WHAT IT MEANS AND MEANS WHAT IT SAYS. Notice all the Article III powers are very limited and not open or general and they are further limited to the actions of the Federal government between states or other nations such as treaties. Then they have some power in the case of State to State actions.The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services aCompensation which shall not be diminished during their Continuance in Office.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under suchRegulations as the Congress shall make.The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.Now IMO the powers are very narrow and the M & M cases were incorrectly decided as in both cases the Court should have returned the items back to the Legislative branch for correction or invalidation [left to die for lack of approval].
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- Part 2 - The High Court stuck fairly close to original intent, even after the two precedent cases mentioned, until 1857, when the court next invalidated a federal law - the critical and politically delicate Missouri Compromise - in the Dred Scott decision. This disasterous attempt to transform judicial review into a mandate to substitute the Justices policy preferrences on slavery for those of political officials crippled the Court's prestige for a generation.By the late nineteenth century, the Court began to interpret the judicial power as allowing it to overturn legislation that did not transgress any explicit constitutional command. In Lochner v. New York, (1905), the Court delved into state laws madating the hours worked by an individual violated the 14th Amendment by depriving employees and employers of "liberty" and " property " without due process of law.. The case itself was supposed to decide proceedural protections, but instead created a substantive right to contract freely. It took the unions little time to exploit this new gift.The ramifications of the McCulloch case did not rear it's ugly head until 1937, when the court abandoned their approach and announced that economic legislation would be upheld if it had any rational basis. Instead, it has struck down laws dealing with isssues like education, crime, voting, and abortion - areas previously thought to have been left by the constitution to the political process. It all depends on the definition of rational I suppose !Follow this reasoning - I dare you to try ! " Judicial review can be exercised only over cases that are justiciable " ( i.e. presented in a form suitable for judicial resolution ). In other words, judicial review can only apply if the Justices are alone or with somebody. This is how we got to where we are. The only way back is by Amendmending the Constitution and reining in these self imposed deities.
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- John Adams the best attorney of all said this -The judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.James Mason added this:I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate
Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense! – Letter to Henry Lee (25 June 1824)With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. – Letter to James Robertson (1831-04-20)The beginning by Alexander Hamilton:If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. – Opinion on the Constitutionality of the Bank (1791-02-23)If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last… A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government. – Essay in the American Daily Advertiser (1794-08-28)The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement; the consequences would be the substitution of their pleasure for that of the legislative body. - Federalist Paper No. 72I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? – Federalist Paper
No. 84Thomas Jefferson said:The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution. They are not among the powers specially enumerated. – Opinion against the constitutionality of a National Bank (1791In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution. – The Kentucky Resolutions of 1798 (16 November 1798)The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. - Letter to Abigail Adams (1804)It has always been denied by the republican party in this country, that the Constitution had given the power of incorporation to Congress. On the establishment of the Bank of the United States, this was the great ground on which that establishment was combated; and the party prevailing supported it only on the argument of its being an incident to the power given them for raising money. - Letter to Dr. Maese (1809)I like well your idea of issuing treasury notes bearing interest, because I am persuaded they would soon be withdrawn from circulation and locked up in vaults & private hoards. It would put it in the power of every man to lend his 100. or 1000 d. tho’ not able to go forward on the great scale, and be the most advantageous way of obtaining a loan. The other idea of creating a National bank, I do not concur in, because it seems now decided that Congress has not that power, (altho’ I sincerely wish they had it exclusively) and because I think there is already a vast redundancy, rather than a scarcity of paper medium. - Letter to Thomas Law (6 November 1813)I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. - Letter to H. Tompkinson , 12 July 1816 (image at Library of Congress)As we can see there is no single right way - so IMO we again must use the actual words as stated and the the actual limits as set - If we can not live with the current paradigm then hold a article V amendment State convention to amend what is needed. For without congress in agreement only the States can then force the need corrections.
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- I believe the Article V Amendment process is the only way to get the job we want done. The D.C. bubble is too corrupt to even allow to enter the process we want, so that eliminates the usual Amendment process outright. We have watched James Mason's statement to Mr. Robertson come to life in living color. We have seen the words written only 225 years ago redefined to suit the needs of the left. We do not have to imagine, as Mason did, how the laws would look. We need 34 states to get the ball rolling and 38 to ratify. We are three quarters of the way there, with harsh times coming. This is our chance to get everything done completely - until the courts and the progressive legislatures succeed in twisting the Framers ideals again. The thing conservatives forget is this is a cyclical thing.The average lifespan of a democratic republic is 250 years. We have one thing they never had, the multiple layers of safeguards, and a President who is also Commander in Chief of our military. The only military revolt will happen if the left pushes too hard. The military was my family and I know who to trust and who not to trust. The brass at the Pentagon do not run the military. Our fighting men and women will never follow a Wesley Clark into battle.They are professionals and took an oath to the same Constitution we still believe in, not the leftist vision of Obama's people. We owe it to the future generations andourselves to get this job done. Romney winning this election may actually hurt our chances of an Article V Amendment. The people may want to just give him a chance. The problem is, it is not just him, it is all of D.C. I say we push for this reguardless of who wins. This is much bigger than one election.
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- I have a slightly different take on this contract law arguement Hugh. With each colony having individual Charters at the founding, with deeply religious differences as well as seperate fiscal and power issues in play. The indvidual state's needs meeting a small majority ( They got the required 9 state minimum for ratification ) requirement to get somewhere close to a fair and balanced constitution was accomplished, but in a very hasty manner. Critical time constraints nearing the end of the convention mandated what I consider insincere concessions by the big states. As we have discussed it took very little time for the federalists to use the courts to gain back the concessions and more. The federal government has abused the ambiguous terms of " common good ", and emergency powers granted the President, as ways to circumvent this contract. They could not do so without the stamp of approval from the courts. The courts were given the ultimate decision power, and they must bear the brunt of the blame for our downfall.I consider the contract between the States / Peoples and God, much like a marriage. We must keep the term, " inalienable rights granted by our Creator ", at the very top of our trust in the constitution. The responsibility of keeping this marriage whole was given to us, the people or to the states. It is we the people who have failed in our due diligence. We have fallen into sloth during good times. When the left sees weakness, this is when the progressives pounce. The 1st and 10th Amendments are called the " bookends of our rights. " The 1st has been abused, but the 10th has been erased for all intents - until recently. To the people or to the states is once again in play, and for the first time in memory. We will prevail, or we will fall into a soviet union like break-up. Until death do us part is my philosophy.May God Bless you as well
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- John,I like the Marriage analogy, although I see a Marriage as a two part agreement, one part is the civil contract between two parties, the part that the State can recognize and the actual Marriage part that is Ordained by God, regardless of what the state says.Your statement “We must keep the term, " inalienable rights granted by our Creator ", at the very top of our trust in the constitution” is extremely accurate and important; What God has put together let no man put asunder. God gave us our rights, not man, so no man can take them, we can only give them away.Good Government like a good marriage takes trust and work by both sides, each providing their part and sharing the common good.To someone who thinks Gay marriage is acceptable to God has no idea what a marriage is; someone who does not believe in God, cannot believe that God gave us rights. That is the problem with contract law in regards to the constitution, people who do not understand what a contract is, and those who do not honor the contracts they agree to. To agree to uphold and defend the Constitution and not to do so is dereliction of duty, but they have no understanding of the Constitution or of Honor; so they do not care. That is the LEFT!God Bless.
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- Hugh,When I first got out of University I was employed by a CPA firm and one of my tasks was to review and rewrite PARTNERSHIP contracts between Lawyers as they had no idea how to make the work performed balanced so one could be working 80 hours per week and the other working 40 hours per week. Then they needed to have a buy sell agreement or exit method defined or the interest in the firm had no value.Lawyers understand court cases and not necessarily the laws the govern business structures and normal accounting functions. I also did all of the tax returns of the various firms we represented. I even had some Lawyers bring me the information so I could prepare their clients returns which they then transferred to their forms and letterhead as if the Lawyers had prepared them.Life is full of surprises and the law is always a surprise . . that is why Lawyers do not trust juries in business lawsuits. Why do you suppose that would be the case???
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- Emotions not facts.Juries can be emotional entities. Business Law depends on facts.God Bless.
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- Juries can become the law . . . no Judge can over turn a jury decision . . . Jury nullification like in the OJ trial is real . . . if a citizen represents themselves [Attorneys will not do this], the citizen can ask the Judge to refrain from instructing the Jury as to the law - for the purpose of the trial is to have a jury of peers review the facts at hand and decide who's argument and facts fit the situation being litigated. the Judge is then reduced to a referee making sure the court is conducted in order and harmony?The Judge will yell and scream but there is nothing the Judge can do for the decision after review of the facts is the duty of the jury not the Judge. There are MANY CASES WHERE THIS HAS OCCURRED however they are not advertised.Check it out - if the theory hold true then the law will change with the computer and ease of gaining legal facts and laws????? See a book called Micro Millennium ca. 1970
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- You would be amazed at the different state laws reguarding what a judge can do - in sentencing limitations, in overturning juries ( a judge most certainly can overturn a jury's decision in some states.) This usually results in an appeal, but it all depends on the financial state of the defendant. Another amazing stat is how the prosecution always seems to have enough monies to carry on !Then the other side of the coin - when a judge is restricted to specific limitations and can not use common sense. How is it possible for justice to be attained with these restraints ? Justce is the goal - right ? ( ask the prosecutor with the 100% win percentage )
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- No justice is blind the law is to be kept not made fair or better. Can you find a example where a Judge over turned a jury decision - not where the Judge changed the amount awarded which would be the only situation I recall. However the old brain places some strange games on the old mind - HUH? LOL
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- If we can prevent the government from wasting the labors of the people, under the pretense of taking care of them, they must become happy. - Letter to Thomas Cooper (29 November 1802) Thomas Jefferson
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- "Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823. "Common sense [is] the foundation of all authorities, of the laws themselves, and of their construction." --Thomas Jefferson: Batture at New Orleans, 1812.
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- This piece written by Robert Natleson can be useful in deciding the meaning of words and what the current rules use as criteria -Original Intent, Original Understanding, Original Meaning [Image] Posted by Rob Natelson [Image] EmailShare Share on Tumblr inShare [Image]It is often said that the Constitution should be interpreted according to its “original intent, “original understanding,” or “original meaning.” Is there any difference between these concepts? And if so, which is the proper standard? This is an area in which there has been a great deal of confusion, largely because few constitutional writers are familiar with how 18th-century lawyers and judges construed documents. We can begin clearing the confusion by defining the terms. The phrase original intent usually means the subjective opinion of those who wrote the Constitution as to what a particular provision was supposed to communicate. Original intent also is called the intent of the Framers. Researchers try to deduce the original intent by examining both direct evidence (what the 55 drafters said during the Constitutional Convention), and indirect or circumstantial evidence. Examples of the latter include, among other things, what people said about the instrument during the ratification debates, the meaning of key words in common discourse and in contemporaneous dictionaries, and their meaning in legal and literary sources. The original understanding of a constitutional provision usually refers to the subjective opinion of the 1648 state convention delegates who ratified the Constitution. Principal sources are the records of the ratifying debates. For example, if Delegate X explained a provision in the document in a particular way and no one contradicted him, then (particularly if Delegate X was a proponent) you can infer that other delegates understood the provision the same way. Indirect and circumstantial evidence for original understanding include what Framers and commentators said about the provision, as well as the meaning of the words in common discourse and in contemporaneous dictionaries and legal sources. The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth. Obviously, the evidence used in prove each of the three concepts overlaps. In practice, moreover, the original intent of a provision is usually the same as the original understanding or original meaning. But differences do occur. For example, during the 1787 drafting convention, John Dickinson stated, without contradiction, that ex post facto laws were always retroactive criminal laws, and did not include retroactive civil laws. (Examples of the latter are retroactive taxes and statutes to cure defective legal proceedings.) That, apparently, formed the Framers’ original intent. But during the ratification debates, it became clear that many, perhaps most, people thought that an ex post facto law might be civil as well as criminal (original meaning). So the ratifiers worked out a deal by which the term was understood include only criminal laws. This was the original understanding. In the event of a conflict between intent, understanding and meaning, which should control? The key to answering that question is to answer another: “When the Constitution was adopted, what was its legal force? In other words, how would the courts of the time have interpreted it? The Constitution is, of course, a legal document, so you can find the correct response to this question by investigating how judges, and other lawyers and public officials interpreted legal documents of the same general kind during the Founding Era. In 2005, I spent much of a sabbatical at Oxford University researching this question. I learned the following: * Most legal documents, including state constitutions, were interpreted according to the “intent of the makers” of the document. * Just as a statute was interpreted by the intent of the legislators who gave it force rather than by the intent of the legislative staffers who wrote it, the Constitution was to be interpreted by the understanding of the ratifiers who gave it force rather than the intent of the Framers who wrote it. * When judges and other lawyers referred to the “intent of the makers” they meant the genuine subjective intent. The subjective intent of the ratifiers is the same as original understanding. * Where the original understanding was not recoverable, either because the evidence was lacking or hopeless contradictory, Founding-Era courts and lawyers applied the meaning a reasonable person would have given a term—that is, original meaning. [Image] Get the 2nd Edition Today! Thus, the original legal force of the Constitution—as it would have been applied by Founding-Era judges, lawyers, and officials—is based on the original understanding; if this is not recoverable, then you apply the original meaning. Original intent is useful only insofar as it tends to prove understanding or meaning. More discussion on this topic appears in my book, The Original Constitution: What It Actually Said and Meant. Those who wish detailed citations and full scholarly discussion can read the article that emerged from my Oxford research: The Founders’ Hermeneutic: The Real Original Understanding of Original Intent. In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute. If you enjoyed this post:
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- Reply by onThat is not what I said or even eluded to - THE CONSTITUTION SAYS WHAT IT MEANS AND MEANS WHAT IT SAYS. The FF&R did not include any references to the British common Law or to John Locke or to Hobbs and many others that they took from. They wrote the document in plain ordinary language of the time so that the everyday common man could read it and understand what they were agreeing to be bound by.Most problems with the constitution and issues revolve around someone trying to read into the Document what it does not say - How many 9-0 decisions would the SCOTUS issue if they had to relay only on the actual words and meanings of the time to develop findings. No extensions of clauses, no creating new meanings, no creating new rights, no implied reach through to other laws and doctrines, no modernization, no using Stare decsis, no using case law theory to gain new powers, no use of dicta as in the Maybury V Madison - McCulloch V. Maryland, and others.Now if we do not allow any of the above then all items not in Article I section 8 would be the areas that each State would need to decide on their own. Again ending the usurping by the legislature, the executive and the courts of the LIMITED powers of the Federal government. Life would be more simple and States would compete to make their State more free and open to new businesses and ideas or they would lag behind the leaders. No one should be free to "INTERPRET" the Constitution as there is no authority in the Constitution to allow that now is there?The desire to create new rights and to control more commerce and dictate how and when the people can do what ever the government wants to limit is why Lawyers, Politicians, Judges all have been trying to change and expand the Federal limitations as the Constitution tells the government what it can do and gives all other powers and rights to the States and to the people. So, unless they can bring in the Federalist papers, letters, speeches, debates, notes and papers like Hamilton's letter on Manufacturing to confused the issue they stand no chance of usurping.The question now becomes to me is that will Congress now admit that they have usurped powers they do not have - I have just been reading the Hamilton on Manufacturing and how his words were used by the SC to make decisions that the Congress could spend what ever they wanted -Hamilton's theory remained dormant until 1936, when the Supreme court issued dicta [side comments] referring favorably to Hamilton's view. Later, the Court adopted those dicta as authoritative, and ever since that time the Court has acquiesced in nearly all federal spending - even spending that most people would deem inconsistent with the "general welfare."Why haven't legal scholars challenged the accuracy of the is manifest distortion? A few have. But legal scholars are, overwhelmingly, supporters of the federal welfare state, and Hamilton's theory is the major Constitutional prop for the federal domestic spending. Most legal academics want to increase that spending, not strip away its constitutional fig leaf.So, most members of Congress are Lawyers - we the people have a long and difficult road to restore our rights and powers. maybe the 10th amendment and challenge to the commerce clause will make our task a lot easier.
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- Here are some links to some original source material from which the intentions of our founding fathers can be documented during our Constitution‘s framing and ratification process:
Notes on the Debates in the Federal Convention
The Federalist Papers
Elliot's Debates (The Debates in the Several State Conventions on the Adoption of the Federal Constitution)
Also see: A Century of Law making for a New Nation
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Where Does the Supreme Court Get Its Power?
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- Though I respect this man's opinion, Mangus, that is all it is, another man's opinion. I have at least two dozen texts, all words taken straight from the horse's mouth's, the Framers autobiographies or compilations of letters and papers, and they do say our judicial system is based directly upon the Brithish system at the time of the writing of the Constitution. Judicial review by definition is only judges reading or hearing evidence in a case and then defining it, or debating it if in a multi judge trial or hearing, and coming out with a final verdict. The British system used precedent case law with the words in their constitution as well as natural law, which is not written - period. How would you suggest a case be judged if the judges can not use definitions of words in all the various contexts which I listed here once - 13 seperate contexts in the Heritage guide to try and figure out what original intent truly was.The text of the Constitution could not possibly hold all the words and arguements debated at the conventions and elsewhere, which gave them the finished product. James Mason was given the task of writing the final draft. What he chose to omit or include was altered only slightly. The constitution can only be understood completely by reading all the thoughts of all the actors in this play. We can not blame the Framers for the multiple meanings of so many words in the English language. Human nature dictates a bias will be used by these judges and justices, sometimes overtly, and sometimes subliminally, but it will always be there.
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- John,Like you I have researched the original intent . . . The Founders - Framers - Ratifiers placed in and wrote in everyday simple words the actual Constitution so even the average citizen of the time could understand the meaning of the document. Now that being said all have tried to define the meanings as OPINION which is what Courts do - issue OPINIONS based on findings of fact and case law precedent . . . As I posted above and will re-post here so others can relate - the Actual Constitution issues no such powers to the Court or to the other branches.No one should be free to "INTERPRET" the Constitution as there is no authority in the Constitution to allow that now is there?The desire to create new rights and to control more commerce and dictate how and when the people can do what ever the government wants to limit is why Lawyers, Politicians, Judges all have been trying to change and expand the Federal limitations as the Constitution tells the government what it can do and gives all other powers and rights to the States and to the people. So, unless they can bring in the Federalist papers, letters, speeches, debates, notes and papers like Hamilton's letter on Manufacturing to confused the issue they stand no chance of usurping.The question now becomes to me is that will Congress now admit that they have usurped powers they do not have - I have just been reading the Hamilton on Manufacturing and how his words were used by the SC to make decisions that the Congress could spend what ever they wanted -Hamilton's theory remained dormant until 1936, when the Supreme court issued dicta [side comments] referring favorably to Hamilton's view. Later, the Court adopted those dicta as authoritative, and ever since that time the Court has acquiesced in nearly all federal spending - even spending that most people would deem inconsistent with the "general welfare."
As all can see the Courts just created case law precedent using a long dead man's work that was never adopted or even used as a finding in any case. Let me now address the issue of British Common law, yes it was widely used by the States except for Louisiana which used Napoleonic code. The FF&R knew and were familiar with these facts and yet they purposefully left them out of any reference in the Constitution. Some have argued it was implied, some said it was an oversight, some said it was not mentioned as they intended all such actions to occur in the State Constitutions and their courts. I am inclined to agree with the last option.Few lawyers like my selection and fewer Judges like the option as it severely limits their powers to usurp. The FF&R issued approval for very limited Supreme court powers and even limited what they could adjudicate. All must keep in mind that intention of the FF&R was always to LIMIT the ability and powers of Federal government. So, now let me state a logical explanation how the conflict came to be - the Legislature, the Executive found themselves severely limited without amendments being required - so how could they gain unauthorized powers without the Article V action?It appears that they agreed in 1803 that usurping by OPINION would open up the limits and the various branches could just approve each others actions with OPINIONS. In my view this followed the Alien and Sedition acts [five] approval in 1798 by the Federalist 5th Congress ended the LIMITS of the Constitution. Below is the wiki report on the acts.The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution and during an undeclared naval war with Britain and France, later known as the Quasi-War. They were signed into law by President John Adams. Opposition to Federalists among Democratic-Republicans reached new heights at this time since the Democratic-Republicans had supported France. Some even seemed to want an event similar to the French Revolution to come to the United States to overthrow the government.[1] When Democratic-Republicans in some states refused to enforce federal laws, and even threatened to rebel, Federalists threatened to send the army to force them to capitulate.[2] As the unrest sweeping Europe was bleeding over into the United States, calls for secession reached unparalleled heights, and the fledgling nation seemed ready to rip itself apart.[2] Some of this was seen by Federalists as having been caused by French and French-sympathizing immigrants.[2] The acts were thus meant to guard against this real threat of anarchy. Democratic-Republicans denounced them, though they did use them after the 1800 election against Federalists.[3] They became a major political issue in the elections of 1798 and 1800. They were very controversial in their own day, as they remain to the present day. Opposition to them resulted in the highly controversial Virginia and Kentucky Resolutions, authored by James Madison and Thomas Jefferson.
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- Mangus - I don't want you to misunderstand me - I agree with all of your stances. All of the Branches of the federal government have usurped powers granted the states. My arguement is and always will be, the constitution granted the courts, specifically the Supreme Court, the power to arbitrate all things. I will go even further than you on ranting about how the Courts have defined simple words with their own biases, using the imperfections of the English language.The Congress was given the power to legislate new lws reguarding any abusive definitions by the courts, but they choose not to, or to amend the constitution. As we have seen so many times, the courts can still define the new mandates, and the constitution will still say their judgements are final and binding until further action is done. Our job is to push as hard as we can to get conservative judges and Justices in these seats of power, and in my view, give them all term limits, and possibly even make them elected officials - with the federal seats on the Bench being as a Presidential election, and the district jursdictions being limited to the citizens in that district. The ability to remove those who abuse the language placed in front of them, more and more of them in undeciferable, ambiguous legalese, must also be made easier and more ability given the general public to influence the outcomes of their futures.I would love to see legalese banned from all things in our lives. They are useful to nobody but self-serving members of the Bar and the Bench.IMO - The error you are making is leaving out the implications and original intent reguarding the unwritten natural law of man and God. The further we get as a society, from the principles and ethics of the Framers, the easier it is to dismiss the laws of nature altogether, and that , once again, IMO, is what our judicial system has done.
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- Where the Supreme Court gets it's power is etched in stone - Article III, Sec. 1and 2 specifically give the SCOTUS absolute final judgements. The wording in these Articles and Sections are also very ambiguous, like so many other areas of the constitution. This document was meant to be only an outline restricting the powers of government and delegating seperate powers to each branch.The limits on the powers delegated to each can not possibly be defined in words. This is where the powers given the states and Legislative Branch are supposed to come in as overseers of this final arbotor of cases, but not the final say on all things in our lives. I could not agree more about the usurpation of powers by all three branches. The states have not held up their end of the bargain, and we the people of those states have not made them. To grab as much power as one can is only human. It is our job as the people to put a clamp on these avarice driven representatives.
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- John,Read the Article III again - the FF&R went so far in limiting the powers of the court as to define the ONLY cases and issues it can review . . They have no authorization for instance to hear a case about University Admissions requirements - those cases would be limited to state courts as there is no State to State or State to foreign action. No, sir I must disagree Article III tells the SC what it can hear and all other cases are a reserved power of the States per the tenth amendment. In my world the SC can only hear what fits into the actual stated options or enumerated powers if I might use the term.
Article 3 - The Judicial Branch
Section 1 - Judicial PowersThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services aCompensation which shall not be diminished during their Continuance in Office.Article 3 - The Judicial Branch
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under suchRegulations as the Congress shall make.The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
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