It has come to my attention that people are deficient when it comes to the Constitution and its meaning. People blindly accept whatever the Supreme Court says whenever an issue arises and then move on their way. Yet it is imperative that as Americans we understand the Constitution rather than allowing someone else interpret it for us.
Methods of Interpretation
Before we get started let’s define a few terms:
- A Strict Constructionist or Textual Orginialist is someone who holds to Textual Originalism when interpreting the Constitution as opposed to the Living Document Theory.
- Textual Originalism purports to interpret the Constitution by the strict meaning of the words or, in some cases, by the original intent of those who wrote said words. Originalism holds that the Constitution should always hold the same meaning.
- The Living Document Theory is a theory which states that the Constitutions meaning changes with “the expediency of the moment”. Its principles aren’t timeless but rather malleable. This theory didn’t exist until the time of President’s Teddy Roosevelt and Woodrow Wilson. Before that Originalism dominated Constitutional interpretation.
- A Conservative Justice is a Justice who, despite personal political affiliation, usually goes by older methods of interpretation which all fall under the heading of Originalism. Hugo Black was a liberal Democrat however as a Supreme Court Justice he was a Conservative Justice. Antonin Scalia, one of my personal favorites, was both Politically and Judicially Conservative.
- A Liberal Justice is one that uses Living Document Theory to interpret the Constitution. Ruth Baber Ginsburg is a Liberal Justice. Liberal Justices are usually politically liberal as well and allow their political beliefs influence their rulings.
- Judicial Activism is when a Justice goes outside the sound methods of interpretation to enforce their own political opinions. Its what I like to call C.R.A or Courts Run Amok.
I think that Originalism is the best approach to Constitutional interpretation. Firstly it prevents Federal Overreach. Secondly it provides for as narrow of an interpretation as possible. And thirdly it prevents C.R.A.
How much Power does the Constitution give Congress?
The Constitution has an elaborate system of separation of powers and checks and balances. The powers are first separated between the State and Federal Government and then the Federal Powers are Separated between the Executive, Legislative, and Judicial Branches of Government. However to be honest Congress holds all the real power. The President only signs bills into law or vetoes them and then enforces the laws on the books through the beauracracy. He does have some war time powers as well however Congress must first declare war. The Supreme Court merely decides if a laws is Constitutional or not. In so doing it creates “case law” however it can’t actually write real laws. It can only set Precedents. But Congress writes and passes the laws. So how powerful is Congress supposed to be according to the Constitution?
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the value therefof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the Supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection 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; To exercise exclusive Legislation in all Cases whatsoever, over such District(not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying out into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. -Article I, Section VIII Constitution of the United States of America
Congress only has the above few powers enumerated to them. Additionally they can now tax income due to the 16th amendment. But that’s it. In the next section(IX) it provides a list of things Congress can’t do. The States on the other hand have all the powers not specifically delegated to Congress in section 8 nor denied to the States in section 10 via the 10th amendment. This means that any power not specifically granted to the Federal Government or Denied to the States is a State power.
The Elastic Clause
The last part of Article I Section VIII reads:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Some have read this to mean that Congress could “stretch” the limits imposed on it by the Constitution thus making it an Elastic Clause. However this is false for two reasons:
- When broad and narrow language is used together, as the Constitution often does, the narrow language restricts the broad language.
- This clause tells you what laws are “necessary and proper”: laws needed to carry out the Foregoing Powers (those previously mentioned) and any other powers found in the Constitution (added later by amendment).
Thus this isn’t an Elastic Clause. At least not in the way that term is meant. It can’t stretch the Constitution to mean whatever Congress wants it to mean but only to do whatever is necessary and proper in order to carry out congressional powers. Necessary meaning of course that they can’t effectively carryout a specifically enumerated power without said law and proper meaning that the law doesn’t violate any ethical standards. It can’t, however, give Congress a power not specifically enumerated. For example Congress has no power to ban private citizens from consuming certain foods even if those foods are unhealthy. That power is not enumerated in the Constitution and therefore doesn’t exist. It doesn’t matter that such a regulation is “necessary and proper” or that Congress wants to pass said law, or furthermore that the People want said law. What matters is that it isn’t enumerated in the Constitution. That’s it. End of story.
The Common Welfare Clause
Another Clause that Liberal Activist Justices love to stretch to mean whatever they want is the Welfare Clause which states, and I quote, “…provide for the common Defence and general Welfare of the United States…”
A liberal justice will see words like “common defence” and “general welfare” and use it to justify government overreaches such as Obamacare or Social Security etc. However what does the Clause actually mean?
The word General means involving, applicable to, or affecting the whole.
- work for the common good.
- thedefense of our country.
The word Welfare means the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity.
In other words the Constitution gives the Congress the power to fund the defense and provide the conditions necessary for prosperity and happiness of the whole country. Not to provide sustenance for a specific group(such as the poor or blacks). It doesn’t give Congress the power to enact laws that benifit a specific social class or ethnicity. All such laws evade the plain meaning of the words and thus are, or ought to be, unconstitutional.
Can the President circumnavigate Congress via Executive Order?
Short Answer: No. The Constitution doesn’t even contain a clause entailing executive orders. Rather an executive order is a natural outgrowth of the President’s authority to enforce the laws via the bureaucracy. In other words once a law is signed and it becomes the President’s duty to enforce it he does so through special orders which he hands down to the specific department that the law falls under telling that department how to enforce the specific law. This is the basis of Executive Orders and any order which falls outside of the law is unconstitutional as the President doesn’t have the authority to do this.
Do the States have the right to Secede?
Short answer: Yes! So firstly the constitution describes the process of becoming a state(Article IV Section III) however it never describes the process for leaving. Under the rule about Congressional powers any power not specifically enumerated to Congress nor denied to the States is a state power via Amendment X. Since the Constitution doesn’t give Congress the power to set forth rules governing the sessation of states then that authority belongs to the States. It does not, and cannot, belong to Congress.
What about the fourteenth amendment?
So firstly there are people who say “the fourteenth amendment should be repealed” while hiding behind conservatism. So let me make one thing clear: these people are racists! That is the only explanation as to why they would want to repeal the 14th. Secondly the part that really counts is Section I which reads:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thus the 14th amendment does three things:
- It extends the bill of rights to the States.
- It guarantees due process by the States.
- And it guarantees equal protection of State and Federal laws within the State.
Now this has been misused by the courts in one way: 9th amendment arguments. So the 9th amendment merely states that amendments 1-8 don’t constitute an exhaustive list. That there are other rights too. In order to establish these other rights somebody had to sue the Federal Government and if they won the said rights would become part of the body of laws known as Case Law. The Federal Government would have to change its laws immediately.
The fourteenth amendment does extend the bill of rights to the states however those rights have to be specifically enumerated either in the Case Law or in the Bill of Rights itself and they have to be extended via a victory at the Supreme Court. There have been multiple rulings which violate this principle. Roe V. Wade for example established a “right to abortion” however the “right to abortion” wasn’t listed specifically in the Constitution nor was it recognized in previous case laws against the United States Government. In other words the court unlawfully created a right that didn’t already exist and pushed this right off on the States. Another such example is gay marriage. There is no specifically enumerated right to marry nor is such a right included in case laws against the United States government. Thus by upholding a right to marry the courts committed illegal overreach.
The Second Amendment
The Second Amendment has been a matter of Controversy for years. So let’s beat this dead horse again.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. |Amendment II of the United States Constitution
So here the Constitution establishes a right to keep and bear arms. Yes this is an individual right for the following reasons:
- the Militia was mentioned being part of a militia is not the right listed: keeping and bearing arms is.
- While yes “arms” is short for armaments which is a term for military weapons all weapons in this era were military grade weapons.
- Yes the founding Fathers recognized that weapons technology would expand as the puckle gun, the world’s first Machine gun, had already been invented by the time this was written. Future developments in weapons would undoubtedly become military weapons first so if they didn’t want military weapons in the hands of private citizens they should’ve said so.
- Finally a militia is a private military unit used to defend towns and villages. If they meant military service they would’ve used the term Regulars rather than Militia as that was the term for the professional army back then.
Thus this is clearly intended as an individual right.
The Takings Clause
Some people, including Donald Trump, believe that an increase in revenue equals public use. Does it? No. Public use, as intended by the founders, clearly meant something that the average citizen could use without having to pay anything other than his or her taxes. So a road or bridge for example. If a citizen has to pay to use it, outside of taxes, it is not public use. The fifth amendment includes three requirements for the government ceasing private property:
- It has to be for public use.
- It has to be by due process.
- And they have to give just(market value) compensation.
If any of these rules are broken the confiscation is unconstitutional. This includes the Dakota Excess Pipeline.
While the above examples aren’t exhaustive the principles I used can be used to soundly apply the Constitution to any issue that arises. Thus they are rational and objectively grounded. If the Courts would base its decisions off of these principles this country would be better off.