Thursday, March 3, 2011

A Quick Look at "Original Intent"

Rather than routinely adding more of my opinions to the millions already ignored out there, over the past year I have been slowly diverting more of my focus to better understanding the original meaning of the Constitution, the very pillar of our experiment in republicanism.

As a result of that effort, I have come to appreciate that only with a clearer, uncorrupted understanding of our guiding principles can we more easily distinguish revionist interpretations from those which fully comport with our founders' intent.  

Frankly, since taking this self-help tack, I have, sadly, discovered a mountain of disinformation and misrepresentation in the news media and blogosphere alike.

Some of our own politicians--especially on the left--who have taken the oath to preserve, protect and defend the Constitution are among the worst offenders. Whether it is deliberate or simply born of ignorance, the revisionism emanating from all levels of government and media is truly breathtaking and a serioius threat to our Republic.

To help me see through these countless misrepresentations of our Constitution, I've taken the time to research and to briefly write about the “Commerce Clause”, “Necessary and Proper Clause”, the “Supremacy Clause”, the 2nd and 10th Amendments, Term Limits and Judicial Review. Tackling these intensely interesting topics has broadened my understanding of our founders' intent and meaning and has, I believe, made me a more responsible and critically thinking citizen. Though it's only a start, I have at least now been able to delight in making it harder for revisionists--on the left and the right--to get away with their arrogant misrepresentations with impunity.

This time, I'm very briefly tackling the principle of “original intent”, what it means and how we determine what it is. Caution:  this is only introductory and most certainly not intended to be a comprehensive treatment of the subject. But, like I said, it's a start, and I hope it's helpful to the reader as well.

As noted in previous posts, the principle of “judicial review” has long ago given way to “judicial activism”, “judicial revisionism” and, today, relatively unbridled “judicial supremacy”. Among too many jurists today, familiarity with case law alone and a proclivity for advancing political and social engineering agendas has, in whole or in part, supplanted their fidelity to the Constitution.

In the words of Thomas Jefferson, the Supreme Court and its appellate network have evolved into a “judicial oligarchy”, quite at odds with their original role as “faithful guardians of the Constitution” and woefully incompatible with the bedrock principle of constitutional supremacy.

So, just how do we determine original intent and meaning, this to prevent our further straying from the founders' republican plan of governance? And how do we detect misrepresentations?

In his book, “Original Intent”, David Barton lists10 tactics which “historical revisionists” continue to routinely employ in order to misrepresent history and to misinterpret the Constitution in order to advance their political agendas. And while none of these tactics will surprise the reader, these disreputable and thoroughly unprincipled practices bear repeating here: "the use of patent untruths; overly broad generalizations; outright omissions/misquotations; insinuations and innuendos; impugning morality; presenting fiction as though it were fact; the use of psychohistory/psychobabble; failure to account for etymology (changes in the meanings of words); and the absence of primary source references." More than I want to get into here, but very well-worth perusing in Chapter 16 of his book. 

In “The Original Constitution”, Robert Natelson assures us that “we can reconstruct most of the original Constitution's meaning with clarity and confidence” if we become familiar with period historical records and 1787 law. More specifically, he tells us we should familiarize ourselves with the words of both the framers and the ratifiers which he respectively refers to as the Constitution's drafters and makers, and to rely on Bacon's Abridgment or Jacob's New Law Dictionary to capture the actual and prevailing meanings of their words.

The drafters (framers), 55 in number, wrote and explained the document to the 1,648 state ratifiers who, based upon the latter's understanding of the document as explained to them by the drafters, adopted it, Rhode Island being the last state to ratify in May 1790 . Thus, how ratifying conventions (the makers), representing “we the people” in the several states, understood the intent and meaning of the Constitution as explained to them by the framers is referred to as “original understanding” and is, of course, centrally important to our understanding the Constitution.

Natelson tells us to bear in mind that undergirding the Constitution are these guiding principles with which all founders, both framers and ratifiers alike, were in agreement: liberty, natural/unalienable rights of individuals; effective, decentralized, limited, republican (responsible to the people)  government; fiduciary government (meaning a government acting in good faith and honestly on behalf of the people). And always remember that intent and meaning are predicated upon these inviolable principles.

Within the context of 1787 law and the prevailing rules of legal interpretation, the founders agreed that "to properly construe original meaning one would need to construe the meaning as a reasonable and involved person at the time and under those conditions peculiar to that moment would have done so," relying heavily on how the ratifiers/makers—not the framers/drafters—interpreted the meaning.

Why the heavier reliance upon the ratifiers' understanding? How supportive the state ratifiers were of adopting the Constitution hinged upon their own understanding of the document as presented and explained to them by the framers whose herculean and single-minded task it was to persuade the States to join the new-found republican union. Thus, the ratifiers' understanding of the Constitution is absolutely essential to achieving “original understanding”.

Also, to accurately construe meaning, scholars rely upon the principle of “equitable construction”, meaning that when a document's wording appears to conflict with the intent of the framers, that the latter, that being the intent, once correctly and objectively deduced, holds sway. Obviously, this requires considerable due diligence and no small amount of intellectual integrity.

Then there's the rule of construction known as “designatio unius est exclusio alterius'” (naming one thing implies the exclusion of the other) which is a time-honored means of construing the makers' intent. In his book, Barton clearly illustrates this rule with this example: if your wife tells you to pick up lettuce, tomatoes, and onions at the store, this means to the exclusion of celery and pudding. (Very importantly, this also means that 'enumerated powers” are just that—inclusive only of those expressed powers and exclusive of all others.)

Most critically, when exercising any of the rules of construction, it must be accompanied by objectivity and judgment and, again, the exercise must be purposefully aimed at accurately exposing the makers' intent, and not of advancing one's personal political predilections—surely a very tall order and, for many jurists, lawyers and politicians today, an apparently insuperable and superhuman task.

Henry Monaghan, in “Our Perfect Constitution”, warned that attorneys and jurists, often without an adequate historical perspective, tend to “subordinate good facts to a good argument”, all in an effort to coax a faulty meaning from the Constitution merely in order to win their case or argument. This, of course, can lead to corrupted case law and specious precedents upon which subsequent rulings are erroneously based. So much for the incorruptibility of case law and the misplaced glory and overblown sacrosanctity of stare decisis. (Nothing like piling error on error, huh?)

In the absence of ratifying documentation as in the case of Delaware, New Jersey and Georgia, each of which fairly quickly adopted the Constitution with little discussion, one must remember that the Federalist framers normally went to great lengths to educate, allay the misgivings of, and to win over state ratifiers. They were quintessential marketers and exerted every effort to ensure ratification. Thus, in these particular states where there is a paucity of ratification records, scholars can correctly assume that the framers' explanations accurately reflected these ratifiers' understanding of the framers' meaning and intent. Makes sense.

We should also bear in mind this cautionary note by David Barton: trying to construe original meaning from materials generated after full adoption of the Constitution (May 29, 1790) and the Bill of Rights (December 15, 1791) will inevitably lead to error and misinterpretation. (And the litany of revisionist case law since ratification would seem to fully bear that out.)

Underscoring the importance of construing original intent and meaning, and much to the dismay of "living and evolving constitution" adherents, it is vital to recall John Dickinson's words: “ We are not forming plans for a Day, Month, Year or Age, but Eternity.” In other words, it is the obligation of judges to keep times in tune with the Constitution, not to keep the Constitution in tune with the times. (Not sure where I read that, but there it is.) Thus, adhering to a so-called “living consititution” approach inherently violates our framers' intent. Thus, only by our dutifully relying on the application of the interpretive principles described above can we effectively counteract corrosive revisionism and the corrosiveness of a "living constitution" mindset.

Also, as Barton explains in his book, the framers uniformly understood that “judicial review” was necessarily limited to judging the constitutionality of a law against the “specific, self-evident wording of the Constitution itself”—in other words, “constitutional supremacy” should always trump “judicial supremacy”. Obviously, that formula has not been dutifully applied in today's world of activist/revisionist jurisprudence.

In Federalist #81, Hamilton noted that “there is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” And James Kent similarly explained that the Judiciary could compare a law only to “the true intent and meaning of the Constitution,” the abiding concern of the framers being that if the judges were allowed the latitude of interpreting the more ethereal meaning, aka “spirit”, of the Constitution “they risked imputing any meaning they might personally desire in order to reflect their own prejudices and values.” Thus, having often insisted that true patriots should dutifully and carefully abide by the spirit, meaning and intent of the Constitution, I now stand corrected. It is now clear that to objectively and accurately deduce the original meaning and intent of the Constitution, divining the spirit of the Constitution should be left to the clairvoyant. Lesson learned.

Unsurprisingly, the framers specifically forbade the judiciary becoming policy-makers or legislators. To wit, Rufus King warned that “judges must interpret the laws; they ought not to be legislators”, thus eclipsing the power of Congress, the people's house. To the framers, the unsettling outcome of such judicial overreach would be public convulsion and possible disintegration of the union. In fact, Jefferson warned “that the dissolution of our federal government is in the constitution of the federal judiciary;...working like gravity at night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” Prophetic.

Obviously, that is where we are today. Imputing court rulings and revisionist case law to the Constitution itself is a serious divergence from the inviolable constitutional role framers had reserved for the judiciary. As such, it constitutes a clear and present danger to constitutional order. And though Jefferson held that the people are the ultimate authority in our republican system of governance, David Barton soberly observed that “today the so-called 'tyranny of the majority' has [now] been replaced by the 'tyranny of the minority'”, referencing many instances of majority electoral rulings being imperiously overturned by activist courts, something never dreamed of or intended by the founders. (The court's overturning California's voters on the issue of gay marriage is an instructive example of serious judicial overreach.) To underscore his point, Barton went on to say that “a foreign observer in modern America today would likely conclude that the President and Congress have taken oaths to uphold the Court's opinion of the Constitution.” Heck, most Americans themselves have begun to share that view as well. And, of course, it is this sorry state of affairs which must be remedied if our carefully crafted of-for-and-by-the-people Republic is to survive. When we grant supremacy to a demonstrably corruptible ruling elite we violate original intent and expose ourselves to tyranny.

Since each branch of government is enjoined to uphold the Constitution as the supreme law of the land, and bearing in mind that each branch of government is inherently empowered by the framers to exercise judicial review, James Wilson asserted that the President can “refuse to carry into effect an act that violates the Constitution.” So too Congress. So too the States, the immediate fiduciary representatives of the people. Jefferson noted that “both magistracies [Executive and Judicial branches] are equally independent in the sphere of action assigned to them.” And with respect to Congress, Luther Martin declared “a knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Constitution.” Jefferson further explained that “each of the three departments has equally the right to decide for itself what its duty  is under the Constitution without any regard to what others may have decided for themselves under a similar question.” Point: the Constitution and “we the people”, not the Judiciary nor any other branch or level of government, constitute the supreme law of the land. When government laws, edicts, rulings violate the people's understanding of the Constitution, those acts are null and void. (Note: this underscores the applicability and constitutional authority of both the 9th and 10th Amendments.)

Thus, a fundamental truth none of us should forget is that the founders rejected the notion that the judiciary is the final arbiter of what is and is not constitutional. Truth be told, we the people, the ratifiers of the Constitution and the republic we created, are, absolutely and without question, the final arbiters of what is and is not constitutional. Never, ever forget that.

More to the point, Lincoln asserted that “if the policy of the whole government is to be fixed by decision of the Supreme Court,...the people will have ceased to be their own masters” which, of course dovetails with Hamilton's assertion that of the three branches, “the Judiciary is beyond comparison the weakest” which, of course, was by design.

Though seemingly self-evident, it's important to note that the Court may rule on the constitutionality of a law, thus “voiding” it, but it cannot nullify it, that is to say prevent its enforcement. (Andrew Jackson made that clear when he forced Cherokees to move west in defiance of the Supreme Court. To paraphrase Jackson, "Well, they made the ruling. Now let them enforce it.") Also, it is axiomatic that an unconstitutional court ruling is inherently without force. Point: the President and Congress have not taken oaths to uphold the Court's opinion as to what is and is not constitutional. So, in that sense, neither the Courts nor any other branch of the federal government may abrogate or otherwise lawfully ignore the people's will. Ultimate power ultimately resides squarely with the people. Period.

Like other constitutional scholars, Barton counsels that the solution to stemming the degeneration of our republican system of governance is the resurgence of an educated, morally grounded electorate which is able and willing to differentiate between virtuous candidates of character with fidelity to the Constitution and those who are only loosely attached to basic moral and constitutional principles. He also warned that our pellmell slide toward democracy, aka “mobocracy”, or majority rule on the basis of feelings rather than timeless Constitutional principles and laws, must be reversed with all deliberate speed or we lose it all.

Jefferson warned that “if a nation expects to be ignorant—and free—in a state of civilization, it expects what never was and never will be.” Thus, it is incumbent upon each of us to familiarize ourselves and others with original intent.

Chief Justice John Jay counseled that “every member of the State ought diligently to read and to study the constitution of his country...By knowing their rights, they will sooner perceive when they are violated and be the better prepared to defend and assert them.” Toward this end, it is crystal clear to me that we should each strive to be thoroughly familiar with the Constitution, never delegating that civic duty to revisionists, scholarly though they may appear to be, or attorneys all of whom have been schooled on case law rather than the clear meaning and intent of the Constitution itself. Again, though it requires some level of diligence on our part, understanding the Constitution is NOT rocket science. Why? Because the framers never intended it to be so. It's a relatively straightforward document, the people's guide to republican governance.

Noah Webster warned that “when a citizen gives his suffrage [his vote] to a man of known immorality he abuses his trust [civic responsibility]; he sacrifices not only his own interest, but that of his neighbor; he betrays the interest of his country.” Lesson: we must cast aside our political party-first blinders and allow the clear meaning and intent of the Constitution to inform our viewpoints and our selection of candidates to represent us.

Samuel Adams warned that “a state of indolence, inattention and security...is forever the forerunner of slavery.”

Daniel Webster cautioned that “I apprehend no danger to our country from a foreign foe...Our destruction, should it come at all, will be...from the inattention of the people to the concerns of their government, from their carelessness and negligence.”

Finally, Pres. Garfield counseled that “...the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate [it].” Wow! He certainly has aptly described the horrifically unpleasant state of political affairs in which we find ourselves today. Some of the asinine, dismissive and ignorant statements about the Constitution uttered by some of our DC reps have been particularly unsettling and offensive.

Ultimately then, folks, the fate of our constitutional republic--our individual liberties--rests solely upon our willingness to actively and knowledgeably participate in our political process, and to insist that we all remain faithful to the Constitution. And, frankly, save for the Tea Party and Nullification Movements today, we've been blowing it big time.