Clarifying the U.S. Constitution

This morning during my shower I felt the need to write a Letter to the Editor of one of the magazines I take - The New American; a right-wing magazine produced by the John Birch Society, a staunch conservative organisation in the States - regarding a somewhat recent article of theirs (in the August 16 issue) that I have just gotten around to reading fully, occasioned by a letter to the Editor in the most recent issue that I have received (October 11). It has to do with a recent decision by the U.S. Supreme Court regarding the Second Amendment (the 'right to keep and bear arms' amendment). In my life, one of the main areas of interest that I had developed was the 'issue' of the U.S. Constitution, and the proper reading thereof. (I hesitate to use the word 'interpretation', as will become clear further in this blog.) With U.S. mid-term elections coming up tomorrow, and with things going on in the country since the Obama election what they are, it seems fitting to be dealing with this subject.+ My subsequent letter:

"November 1 2010

"Dear Editor:

"Although I found Dennis Behreandt's article on the McDonald Decision (August 16) a valuable read, I am still in a bit of a quandary over this constitutional matter. Maybe TNA and/or its readers can help me out. Let me first lay out my take on it.

"The due process clause of the 14th Amendment is just that, and that only: a straight-forward judicial statement. Quote: No State can deprive its citizenry (now, in terms of the 14th Amendment, also citizens of the United States) of life, liberty, or property, "without due process of law..." That is to say (according to my reading, and reasoning), the law cannot be arbitrary or capricious; the States must abide by the rule of law - and furthermore, must now treat the former slaves as full citizens, entitled now to the full protection of judicial due process (what they did not have before that; as per the Dred Scott decision). And furthermore, according to the terms of the 14th, the State laws could not be selective: "...nor deny to any person within its jurisdiction the equal protection of the laws." That was, and is, to say, the law must be, in effect - taking the issue at the time - color blind (that determination was gotten around by the Southern States for some time, but that is another matter); all US citizens are equal before the law. Again, the rule of law is paramount in constitutional processes - and a good thing, too; given the human proclivity to fudge things according to personal socio-political taste.

"I go into [all] this to lay my case for the rightful application of the Bill of Rights. That was an addendum to the proposed Constitution, designed to 'tie the federal government down from mischief' as clearly as possible.* The people had their (bills of) rights secured by their state constitutions - or not. Example: the due process clause of the Fifth Amendment was only applied to the States themselves by the 14th Amendment ("..nor shall any State deprive..."). Yes, there were "natural rights pre-existing the Constitution" (Behreandt's words); but they needed to be secured in law.

"My point: There may well be an assumption that the terms of the Bill of Rights applied to the several States; but unless they were secured in law via the several States's constitutions, they were just that: assumptions. And if you start dealing with the world of assumptions, you start dealing with the world of activist judges - judges making decisions based on their 'assumptions' of the law, rather than the law itself. A dangerous business; as we have found out, in spades. So, my conclusion: the Second Amendment applies only to the federal government. If the people of Illinois, say, choose to have a different take on the matter of the right of their citizenry to bear ams, that is their business, as stated in their constitution and laws passed [pursuant] thereto.

"Now yes, there is the matter of the 14th Amendment's making them as well citizens of the United States. But (1) we've dealt with a couple of those ramification points above; and (2) the 14th Amendment, despite the sleight-of-hand business of the 'principle' of what has come to be known as 'incorporation',** does not turn the Constitution upside down wholesale. That is to say: Nowhere in it does it either say or imply such an amendment to the Constitution as, eg: 'The powers formerly reserved to the States respectively, or to the people, shall now reside in the federal government.'

"Try to get that one passed, liberals; and see how far you get without sophistry employed to attain your ends.***

"P.S. And of course there is also the little point made by your correspondent Pastor James Riddle, in the Letters column of your October 11 issue, whereby he makes an intriguing - compelling? - case for the 14th Amendment having been illegally enacted, "by Radicals in the Republican Party". So both sides of the political aisle have something to answer for, in the mess we find ourselves in in our day and time, regarding living by - trying our best to live by - the rule of law. Not of Men.


"Yours sincerely," [etc.]


+ As for those elections, and my attitude: A pox on both their houses. If the Republicans are justifiably concerned about the socialistic tendencies of the Obama administration and its Democratic Congress (with their ideological attitude of the state riding roughshod over the individual), the Democrats are justifiably concerned about the Republican tendencies to take advantage of lax regulation and think primarily of themselves and their well-being. 'Liberty' all too often seems to mean license to them. There's got to be a better way.
And there is. But that subject is not in the scope of this blog.


* As to that intent: The 'Father of the Constitution', James Madison, in The Federalist Papers presciently warned that adding a Bill of Rights could be dangerous in that it might lend to an illusion, make it appear that the federal government had the power to do anything it wanted except for the rights spelled out in such a Bill (which is in reality just an example of such undelegated rights and powers; the federal government being (or at least intended to be) one of limited and delegated powers - "few and defined", in Madison's unequivocal words). Hence the catch-all addition to those specifically enumerated rights and powers of the 9th and 10th Amendments. The 9th: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th: "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."


** This is the 'principle' - merely a notion, really - that the statement in the 14th Amendment, that "...nor shall any State deprive any person of life, liberty, or property, without due process of law" somehow conferred on the federal government and its Supreme Court the power to turn the Constitution on its head and apply the Bill of Rights as issuing from the federal government to the States. Absurd, and shocking. But they got away with it...


*** Simply, to clarify, and underscore: The federal government does not have the power to order the States to do anything but in terms of its power derived from a reasonable reading of the Constitution and the intent of its terms.



In sum: This socio-political business that has grown up in the country, of declaring: "I know my rights"..."my/our constitutional rights" has been, and is, a bit misleading. It has helped lead to the unclarity that exists in the country today - the unclarity that could lead a liberal Supreme Court, in William O. Douglas's time there, to find a 'right to privacy' in the 'penumbras' 'implied' in the Bill of Rights, which led ineluctably to the Roe v. Wade decision, for example. The Supreme Court should have been kept out of the arena of determining such 'rights', full stop.

The ambiguity crept in slowly, slowly on Fabian paw prints over the years (mostly involving 'commerce clause' decisions), and then more blatantly in around 1941, when the Supreme Court ruled for federal jurisdiction in a First Amendment, freedom-of-speech case (regarding the burning of the U.S. flag as a political statement). And it has been downhill ever since, in the sense of departing from 'original intention', and entering Humpty Dumpty land, where 'A word means what I choose it to mean - neither more nor less'.++ Or as newly-installed Justice Elena Kagan's "judicial hero", Israeli Judge Aharon Barak, would say (and has): "A judge may give a statute new meaning, a dynamic meaning, that seeks to bridge the gap between the law and life's changing reality." So, away with the legislative branch of government! Not needed. Hello Plato's benevolent despots. Or not so...


The country needs to return to the rule of law, or it risks being taken over by either the Left or the Right; socialism or fascism. Arise, the spirit of the Founding Fathers of the American experiment in self-government. Kings need not apply; philosophers or otherwise, individuals or oligarchs.

As I say: A pox on both your houses.

And when we have cleaned up our act, and learnt our lessons as well as we can, we can enter a new era; and leave our training wheels behind. Or as the Judeo-Christian Bible puts it: "When I was a child..."

---

P.S. The Letter to the Editor referred to, regarding the 14th Amendment's enactment:

[headed: 'Fraudulent Basis in Law']

"Dennis Behreandt as usual wrote a fine article, this time on gun control in the August 16 issue of TNA ('The McDonald Decision & the Second Amendment'). However, he did not point out what very few constitutionalists dare to point out. The 14th Amendment was illegally enacted by Radicals in the Republican Party.

"Dr. Larry McDonald, the late leader of the John Birch Society, put it simply in his fine book We Hold These Truths:
'Two-thirds of both chambers did not vote for the resolution proposing the Fourteenth Amendment, as must be done under the Constitution for legal passage of such a resolution. The Radical Republican majority resolved that the resolution did pass, and submitted it to the states for ratification. Three-fourths of the states did not ratify the proposed amendment, as required by the Constitution; but the Radical Republican majority in Congress had the Secretary of State proclaim it ratified anyway on July 20, 1868.'

"McDonald further states: 'Even if legally proposed and legally adopted, the Fourteenth Amendment would have foredoomed freedom under constitutional law, because it conflicts so sharply with the rest of the Constitution.'..."

He was, perhaps, a little too pessimistic in that take on the matter. But it is true that the Fourteenth Amendment has caused a serious weakening of the American form of government, as a constitutional republic with a federal form of government.

It would be helpful to get that form back. Helpful, in the sense of keeping the nation free from being taken over from either the Left or the Right, as a de facto centralized form of government. The states, then, need to reclaim their power, that they allowed to leach away, into hands that cannot be trusted with such power, for not having a proper, spiritual take on what all is involved here. Primarily, the working out of human free will, to a point where humanity can ascend to a higher level of civilization on our beloved planet Earth.

If we so choose.

And that's the point of this whole exercise in living:

Choice.


Which is it to be, friend.

Your choice.

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++ "The question is," said Alice, "whether your can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."