Essay:Originalism and the Constitution

This essay is in response to a blog posting titled ‘’The American Constitution’’ by Justin Thompson that was linked to on the main page of Conservapedia. A copy of the blog is  here. Conservatives, and liberals, like to quote the US Constitution. More specifically, they like to quote mine the US Constitution. But I’m responding to a conservative posting, so I’ll confine my remarks to conservatives.

Here’s how the post opens:

''Conservatives, first and foremost, believe in the Constitution. We believe in the principals established in it, namely the blessings of liberty endowed by our Creator and defended by a limited government with enumerated powers. ''
 * 1) I believe in liberty and limited government too, for whatever it’s worth.
 * 2) No creator is mentioned in the US Constitution. A creator is mentioned in the Declaration of Independence, but that document isn’t law and doesn’t state that it’s the “supreme law of the land.”

So far this guy’s off to a bad start. I’m guessing that he hasn’t looked at the US Constitution in a while and is going off memory. For example, Thompson says: “The Constitutional amendment process was intentionally made difficult to serve as one of many safeguards that limit the power of the national government.” The process isn’t that hard. The Constitution went into effect in 1789 CE, and it’s 2008 CE. So there have been 27 amendments to the in 219 years. That’s less than one a decade. Sure the first 10 were added at once, but that 10 amendments passed at once early on would seem to suggest that the amendment process isn’t all that difficult. Not only that, but we passed the 18th amendment in 191, and repealed it 14 years later, passing two amendments in the interim.

While we're on the subject, the changes to the constitution have been pretty substantial. The electoral college was overhauled, we’ve clarified the line of succession, moved up the presidential inauguration, abolished slavery, given the right to vote to successively inclusive groups (blacks, woman, and over 18), oh and--as I alluded to before—we banned the sale of alcohol and then re-allowed it.

Originalism
" [Conservatives] believe in that process and a strict reading of the text of the Constitution." Hey, I believe in a strict reading of the US Constitution too! Lets see which one of us knows the US Constitution better. "Additionally, Conservatives believe in the Bill of Rights. Unlike the Left, we believe in all of them."

Really, every single one of them!? All ten! Wow, me too! Wait, have you read all ten amendments, or just the ones you like?

"The First Amendment guarentees a number of rights; however, the only part of the amendment that seems to interest the Left is the Establishment Clause - stating that 'Congress shall make no law respecting an establishment of religion.'"

Actually, we like freedom of the press and freedom of assembly also. Maybe you hadn't noticed all those left wing protesters with there signs. And if you think the left dosen’t like to petition the government for redress of greviances, you haven’t been reading the news. Indeed, you probably can’t acess the internet and I’m just hallucenating your post.

"The Second Amendment is one of America's most important rights."

Believe it or not, I’m not going to dispute this.

"The right keep keep and bear arms ensures that we have the ability to assemble an armed militia in the case of a government that grows totalitarian."

I agree that we have a right to bear arms. I don’t agree the right was given so we could rebel. Otherwise Shay’s Rebelling might have been more successful. Or the Civil War. But why drag history into this? This is about the Constitution.

Half-Truths
"Every one of the Bill of Rights are designed to limit the power of the national government. The founders were incredibly understaning in the area of human nature. They knew that the more power that the government had the more likely it would be that even the best of men would abuse that power. Instead of giving the government broad authority over the nation, the Constitution established certain enumerated powers."

Sort of. Actually, the debate over how much power the federal government had went on during the ratification debates and extended into Washington’s presidency where his Secretary of State and his Secretary of Treasury both disagreed on to the extent of the federal government’s powers. What really sets the Constitution apart is two principals:
 * 1) People are to stupid to govern themselves.
 * 2) Governments are too corrupt to govern.

"This leads us the the all important Tenth Amendement. Unfortunately, this incredible amendment has been almost wholly ignored by the Socialist Left. The Tenth Amendment states: '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 means that the government can do what the Constitution explicitly says it can do and no more. If we wish to grant the government additional powers, we can amend the Constitution."

Good point. However, he seems to have missed two important amendments. He skipped over one, and he stopped short before he got to other. I’ll get to those later.

"The founding fathers set out to create a nation based on certain principles and values that they believed were of the greatest significance. We have all heard lists of such values: life, liberty, the pursuit of happiness, et cetera. They saw such rights as unalienable and bestowed upon us from God. Furthermore, because the founders had such a seemingly unprecedented understanding of human nature and the world in general, they established a government designed, ultimately, to protect against infringement of those rights."

Thompson’s confusing the Declaration of Independence and the US Constitution again. Life, liberty and the pursuit of happiness are in that document, not the US Constitution, is where you will find the “live, liberty...” line. Also, God isn’t mentioned in the Constitution.

Let's actually read the document we're discussing
Somehow, Thompson missed the 9th amendment to the US Constitution. The 9th amendment states:

"The enumeration in the Constitution of certain rights in the shall not be construed to deny or disparage others retained by the people." This amendment is the result of debate and opposition. Lest we forget, the Bill of Rights wasn’t in the constitution that was ratified by the various state conventions. It was promised because it was the only way to get some anti-federalists to vote for the constitution. The 9th amendment was included because it was pointed out (by people opposed to a bill of rights) that it would be impossible to list every right a person has.''

Without the 9th amendment, a strict reading of the US Constitution doesn’t include the right to privacy, the right to raise your children the way you choose, or even the right to watch your favorite TV show.

Also, Thompson stopped short before he got to the 14th amendment to the US Constitution, Section 1 is of particular importance:

"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."

Emphasis mine.

This is the big one. This why the courts ruled that states can’t abridge a person’s freedom of religion. A strict reading of the first amendment (the one written by the founding fathers) only mentions congress. It’s the 14th amendment that prohibits states from establishing their own religions. And it’s the 9th amendment that says we have more rights than what’s listed.