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How interpretation has weakened our Constitution

celticwar17 said:
In my opinion, origonalism and taking the constitution literal is the best, most objective way of making the Constitution strong. If people do not like the originalist/literal interpretation... they should draft an amendment that makes it absolutely clear what they want to change.

I think the 10th amendment is the one that is the most forgotten, and one should be enforced more.
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Yeah, except the problem here is that people like yourself who want to talk about the "original" and "literal" interpretation seem to just assume that your horrendous interpretation is literal and original when it is very very clearly not even close.

Article I, Section 8, Clause 3:[3]

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
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That is a literal and original translation of the Commerce Clause of the U.S. Constitution. It literally gives Congress the power to regulate interstate commerce. The problem is that you don't particularly like some of the regulations that congress hands down, but rather than argue over the validity and necessity of the regulation(which you can't), you want to try and throw it all out by claiming it's all unconstitutional(which it's not).

The reality is that as the industrial revolution ramped up the impact that one states economic decisions made on the next state over grew exponentially and therefore necessitates a strong centralized government to be the arbitrator of what is fair and what is foul. Having 50 completely different sets of economic regulations is incompatable with free trade among the states.
 
NWRatCon said:
The Constitution contains two primary purposes. First, it is structural, laying out the form of government, distribution of the powers and authorities, and enumerating responsibilities. Second, it is aspirational. It sets forth principles in the Preamble in its purpose, and various protections in the Bill of Rights and additional Amendments. (Frankly, the 9th Amendment is the most important of those, and most commonly overlooked.)

The Constitution is not a straight-jacket. While it constrains government power, it is, nonetheless, intended to create a functional government. For 235 years it has worked.

There are "interpretations" of the Constitution that would undercut and even destroy that construction, but they are not the ones now posited by the original poster. "Originalism" is a relatively new approach to Constitutional interpretation, and is, frankly, a fraud. New Originalism: A Constitutional Scam (Dissent) "When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”"

The "original intent" of the founders was to create a functional government. To do so, they set forth general principles to govern how the government was to function. Interpretation of its applicability is absolutely required to be situational. That's how every law works, and it was commonly understood by every founder who was a lawyer (which was about 72% of them). They were trained in the "Common Law", and adopted it for the new nation. Common law interpretation has been applied, and was intended to be applied, to the Constitution as a document. It was the same in England, from where the common law was derived.

I am, among other things, a lawyer, historian, and political scientist. I am steeped in the Constitution, its history, its applicability, and its interpretation. That is why I get so frustrated by the facile, uninformed, and partisan statements about what the Constitution was, is, and does. If anyone wants to carry on a substantive discussion, I'm all in. But, you better bring substance.
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When the states established the constitution between themselves, did they give their general government plenary power or did they give it only a certain set of specific powers?
 
Beowulf said:
When the states established the constitution between themselves, did they give their general government plenary power or did they give it only a certain set of specific powers?
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I believe one of our most notable Chief Justices answered that question!


"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void." _ Chief Justice Marshall, MARBURY v. MADISON, 5 U.S. 137 (1803)


JWK

The Democrat Party Leadership has been angry, stupid and obnoxious ever since the Republicans freed the democrat’s slaves. ___ Author unknown
 
johnwk said:
I believe one of our most notable Chief Justices answered that question!


"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void." _ Chief Justice Marshall, MARBURY v. MADISON, 5 U.S. 137 (1803)


JWK

The Democrat Party Leadership has been angry, stupid and obnoxious ever since the Republicans freed the democrat’s slaves. ___ Author unknown
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Right. So the states didn't give their general government plenary power. That means that they gave it limited powers. Those powers are enumerated in article one, section eight.
 
Beowulf said:
Right. So the states didn't give their general government plenary power. That means that they gave it limited powers. Those powers are enumerated in article one, section eight.
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While I agree with the principle that the federal government is one of limited powers, as principally laid out, as stated, in Article I, I disagree that it was created "by the States" in this respect: "We, the people of the United States..." not, we the States. While it required consent of the States, as representatives of their peoples, conceptually it was a direct grant of authority of the people directly to the new government. It was deliberately intended not to be a creation of the States, and to act independently of them. In the areas which the Constitution vests authority, its authority is, indeed, plenary, and includes those powers "necessary and proper" to put them into effect. The States retained those authorities not otherwise prohibited to them by the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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MrWonka said:
Yeah, except the problem here is that people like yourself who want to talk about the "original" and "literal" interpretation seem to just assume that your horrendous interpretation is literal and original when it is very very clearly not even close.



That is a literal and original translation of the Commerce Clause of the U.S. Constitution. It literally gives Congress the power to regulate interstate commerce. The problem is that you don't particularly like some of the regulations that congress hands down, but rather than argue over the validity and necessity of the regulation(which you can't), you want to try and throw it all out by claiming it's all unconstitutional(which it's not).

The reality is that as the industrial revolution ramped up the impact that one states economic decisions made on the next state over grew exponentially and therefore necessitates a strong centralized government to be the arbitrator of what is fair and what is foul. Having 50 completely different sets of economic regulations is incompatable with free trade among the states.
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can anyone say -with even a smidgen of honesty-that the founders even remotely contemplated-that the commerce clause would allow congress to sanction a farmer growing wheat for his own use? of course not.
 
NWRatCon said:
While I agree with the principle that the federal government is one of limited powers, as principally laid out, as stated, in Article I, I disagree that it was created "by the States" in this respect: "We, the people of the United States..." not, we the States. While it required consent of the States, as representatives of their peoples, conceptually it was a direct grant of authority of the people directly to the new government. It was deliberately intended not to be a creation of the States, and to act independently of them. In the areas which the Constitution vests authority, its authority is, indeed, plenary, and includes those powers "necessary and proper" to put them into effect. The States retained those authorities not otherwise prohibited to them by the Tenth Amendment:
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I'm sorry to tell you, but the constitution was established between the states.
 
MrWonka said:
That is a literal and original translation of the Commerce Clause of the U.S. Constitution. It literally gives Congress the power to regulate interstate commerce.
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So, when the several states engage in commerce, how would you like their commerce to be regulated?
 
Re: our federal Bill of Rights and federalism

Beowulf said:
Right. So the states didn't give their general government plenary power. That means that they gave it limited powers. Those powers are enumerated in article one, section eight.
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Exactly! And to insure that the newly created federal government was confined and limited to those powers specifically enumerated in Article 1, Section 8, our founders went on to adopt a Bill of Rights specifically intended to restrain our federal government, not the States, and preserve federalism, our Constitution’s plan. Here is the evidence:

Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

Also, keep in mind of what Madison states regarding the adoption of the first ten amendments and “federalism“:


“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution


The sad thing is, our Supreme Court has repeatedly ignored the commands of our constitution and the intentions and beliefs under which it was adopted, and, with impunity, imposed its personal sense of fairness, reasonableness and justice as the rule of law. A wonderful example of its blatant disrespect for constitutional limits and imposing its will is the Americans with Disabilities Act which I pointed out when the Act was passed, that nowhere in our Constitution is Congress delegated a power to enter the States and forbid distinctions being made based upon a person’s disabilities, and later pointed out, or require an individual with a disability to be entitled to a different set of rules in an athletic competition event.

But in spite of our Constitution’s defined and limited delegated powers, seven members of the Supreme Court took it upon themselves to ignore our Constitution in PGA TOUR, INC. v. MARTIN, and imposed their will as being the rule of law, and went on to require the PGA to allow Martin to ride around on a golf cart, while other athletes were not.


In fact, the seven Justices hung their decision, not on what our Constitution declares, but because the Court asserted its judgement was “decent, tolerant and progressive”.


In dissenting, Justice Scalia, with whom Justice Thomas joined, began their dissent as follows:


"In my view today’s opinion exercises a benevolent compassion that the law does not place it within our power to impose. The judgment distorts the text of Title III, the structure of the ADA, and common sense. I respectfully dissent."

JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice." – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968
 
NWRatCon said:
While I agree with the principle that the federal government is one of limited powers, as principally laid out, as stated, in Article I, I disagree that it was created "by the States" in this respect: "We, the people of the United States..." not, we the States. While it required consent of the States, as representatives of their peoples, conceptually it was a direct grant of authority of the people directly to the new government. It was deliberately intended not to be a creation of the States, and to act independently of them. In the areas which the Constitution vests authority, its authority is, indeed, plenary, and includes those powers "necessary and proper" to put them into effect. The States retained those authorities not otherwise prohibited to them by the Tenth Amendment:
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However, ratification of the Constitution required 9 of the 13 States voting to ratify the Constitution, as opposed to ratification based on a popular vote by the people. In addition, some significant features of the Constitution, in 1787, of placating specific States. The Great Compromise, or Connecticut Compromise, the Three-Fifths Compromise, were responses to ameliorate concerns of some specific States. Creation and ratification of the Constitution may be a hybrid, birthed by both the people and the States.
 
Beowulf said:
Right. So the states didn't give their general government plenary power. That means that they gave it limited powers. Those powers are enumerated in article one, section eight.
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Don't make the mistake of thinking that Congress' constitutional authority rests entirely under Article I, Section 8 of the US Constitution. Throughout the entire US Constitution Congress is granted numerous powers. From Article III that gives Congress the power to establish the courts and appoint judges, to Article IV that gives Congress the power to "dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Even Section 4 of the 25th Amendment awards additional powers to Congress that are not contained anywhere else in the document.

While you are definitely correct in asserting that congressional power is limited to only those powers specifically granted to them by the US Constitution, not all of those powers are confined to Article I, Section 8 of the US Constitution.
 
NWRatCon said:
I'm sorry you missed the point.
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Oh, I thought you were asserting that the constitution wasn't established between the states. If not, then never mind.
 
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