Sunday, November 18, 2012

Constitutionalism by the Numbers

I found this extremely well-articulated argument, while browsing through (of all places) IMDB.com. I had to re-post it. Thanks, IMDB user 'SonofKenny'!  

The founders themselves were not even sure how the completed Constitution should have been interpreted. The document itself was a massive compromise, with some language purposely left vague so as not to offend one faction or another. 

If anyone today believes the founders had a clear eyed, constistent view of the relationship between federal and state power, then they either have not done enough reading on the subject, or are taking a position for the purposes of winning an argument, without regard to its veracity. 

Take the Bill of Rights. Is it meant to limit the freedoms guaranteed in the Constitution to only those stated, or to codify those they felt were most in danger? Because it wasn't specifically stated, does that then mean privacy is not a guaranteed right? Or were the founders so sure that it was understood to be a right, they didn't feel it needed to be specifically protected? It surely is implied in several parts of the document - in the prohibition on quartering troops for example, or the restrictions on illegal search and seizure. Yet so called strict constructionalists insist there is no right to privacy guaranteed. 

Look at the "general welfare" clause, the "necessary and proper," clause, and the "supremacy" clause, then look at the writings of the various founders, and tell me they had a consistent view of their meaning. You won't be able to. 

Look at the 2nd Amendment. A plain reading of the text clearly shows that it was referrring to "well regulated" militas. Yet strict constructionalists today ignore that portion to give nearly unfettered access to firearms. 

If the founders had been the strict states righters suggested by many today, why start the document "We the People" rather than "We the States?" 

Take that patron saint of strict constructionalists today - Thomas Jefferson, responsible for the biggest expansion of federal power almost in American History with the Louisiana purchase. Show me where in the constitution he was granted that power. 

How about James Madison, a walking, breathing representative of the notion that the Constitution was a living, breathing document. As a delegate to the Constitutional Convention he advocated for federal poiwer to nullify state law. As Secretary of State, he argued that states should be required to enforce federal embargo law against other states. Yet later, when President, he did a nearly 180 degree turn on his view, and actually rewrote portions of his diary and journals to reflect his new view. 

Alexander Hamilton thought states should be eliminated altogether. 

So no, anyone who has taken a serious and honest look at this - yes the intellectual elites which included the founder btw - cannot help to come to the conclusion that the founders were as conflicted on the meaning of the Constitution and how it should be implemented, as people are today.

Well played, Sir. Well played. 


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