Thursday, August 15, 2013

U.S. Constitution, Original Intent ... DOUGLAS v. GIBBS

U.S. Constitution, Original Intent
By Douglas V. Gibbs
A friend of mine has been battling with folks that claim the Constitution is a living breathing document that changes with the whims of Congress and the courts. One of the people combating my friend uses case law to define the constitution, and sees the original writings as nothing more than guidelines.
In other words, she believes the typical leftist-induced propaganda that has been thrust upon us for over two centuries.

Sadly, she also claims to be a conservative - and a lawyer.

Law School claims to teach Constitutional Law, but the Constitution is never opened.  The entire concept of Constitutional Law in Law School is based on Case Law.  The original writings, the original language, and the original intent of the U.S. Constitution is not even considered.

Those who wished to subvert the Constitution from the very beginning worked to use the courts, and "implied law," to disarm the Constitution, so as to allow the federal government a greater opportunity to grow beyond the limitations placed on it by the specific language of the Constitution.

The idea that the Constitution is living and breathing, changing with the rolling tides of culture and society, is a concept dating all the way back to the Anglo-Saxon's Common Law prior to the Magna Carta.  Before the Glorious Revolution, the law was not written down.  Common Law was known and assumed by all, and it changed as society changed, morphing as need be.

The Royal Family reached a point in history where there was no heir, so the Anglo-Saxons in England had to import their royalty, and with the new Dutch and German influence, the principles of liberty and a free market as existed during the Anglo-Saxon era were slowly smothered by the idea of a strong monarch as was common in the rest of Europe.  Eventually, realizing that their freedoms and rights were disintegrating, The Glorious Revolution took place, and out of it was written the Magna Carta - a written law that was not designed to be living and breathing as was Common Law, but a set of standards written in the form of a social contract.  The people believed that if their laws and principles of a free society were in writing, it would be more difficult for the monarchs to circumvent it.

Along with studying the histories of Rome, Greece and Slovenia as examples of past republics, the primary research by the Founding Fathers was from their own Mother Country, England.  The Anglo-Saxons provided the principles the founders needed to establish a lasting system of freedom, and liberty.  They also recognized how easily statists could use the courts, or the living and breathing concept of Common Law, to change the Constitution, so the founders put into the Constitution strict standards, and a limited means for changing the Law of the Land (through amendments), while also making the Judicial Branch the weakest of the three branches of government.

Immediately, statism began to work to change the Constitution, through the financial world, and the courts.  Alexander Hamilton, in his argument for a Nationalized Bank, created the concept of "Implied Powers," which, once accepted as being a constitutional concept (of which it never was), could change the original intent of the Constitution by the simple use of an argument that claims whatever is the aim is constitutional because it is implied by this clause, or that clause.  In reality, it is a way to circumvent the Constitution - to allow actions by the federal government that may not necessarily be permitted by the enumerated authorities granted.

Shortly after Hamilton's assault on the Constitution during the 1790s, the Chief Justice of the United States Supreme Court launched his own attack on the document.  In his opinion of the 1803 Marbury v. Madison case, John Marshall established that the federal courts have the power of judicial review.  Today, the "power" is accepted, and unquestioned.

Judicial Review allows the courts to review the law and determine if it is a just law, or even if it is a constitutional law.  This is a commonly accepted concept, and it flies in the face of the original intent of the Founding Fathers, who wanted the States to be the final arbiters of the Constitution - not the courts.

To determine if a law is constitutional is to decide if the federal government has the authorities detailed in the law in question.  Since the federal courts, including the Supreme Court of the United States, are a part of the federal government, Judicial Review is indeed a sinister power for the courts to have.  For the federal courts to decide if a law is constitutional is for the federal government to determine its own authorities.  That, my friends, is hardly in line with the idea of limited government as originally prescribed by the founders.

The courts, through case law, have acted as an agent for the forces that are determined to bring down our system, and change it into a tyranny.  Those who have bought into the case law myth, as has our female lawyer twitter friend of my friend, are accomplices in the effort to bring down our system of liberty, and limited government.

The damage is widespread, and the statist opinions are entrenched in our system.

Take the Commerce Clause, for example.  We are told that because of the language that reads, "Congress shall have Power. . . to regulate commerce with foreign Nations, and among the several States," it means that the federal government can control and restrict commerce between the States all it wants.  The concept was solidified in the Wickard v. Filburn case in 1942, where the courts determined that a wheat farmer pulling his wheat off the market, to be used only for the personal consumption by his family did not make him exempt from federal control, because the absence of the wheat in the market would influence interstate commerce, thus giving the federal government the authority to continue to tax his crop.

The madness becomes evident when one studies the history before the Constitutional Convention regarding interstate commerce, the discussions as laid out by Madison's Notes on the Federal Constitution, and the definition of the word "regulate" as the founders meant it to be.
Prior to the writing of the Constitution, the States were, among other things, charging each other tariffs on goods crossing State lines.  The trade wars worsened, and interstate commerce had slowed to a crawl.  The wise men of the Constitutional Convention realized that they needed to do something that would allow the federal government to enable the commerce to flow freely, while still protecting State Sovereignty.  They decided that the federal government would be given the authority to "regulate" commerce between the States in order to break the stalemates.

To better understand what was meant, one can look up the definition of the word "regulate" from that time period.  In the 1828 Webster's Dictionary, one finds that among the definitions was the one the founders intended to use: "To Put In Good Order."  The federal government's authority was to put commerce in good order by acting as a mediator, or referee.  The federal government was never supposed to restrict or control the movement of commerce between the States, for that would not only not get commerce flowing, but it would bind the movement of commerce in a worse way than it already was.

The Constitution was not written to give the courts or executive more power, but to limit their powers.  The strongest of the three branches of government was supposed to be the voices of the people and the States in Congress.  Statism, however, abhors representative systems, and since this nation's founding has worked to circumvent the original intent of the Constitution.  Tyranny is their goal, and the simplest way to combat that was to enumerate the federal government's powers in a constitution, and make the people, through their States, the final arbiters of the Constitution.

Case Law was never intended to be the law of the land, and the Constitution was never intended to be "living and breathing."  It is a set standard, a social contract that spells out in specifics what the federal government can do. If the authority is not granted by the Constitution, then the federal government simply does not have that authority.

It is all very simple, really, if you stick with Original Intent, and don't try to complicate the whole thing with the flawed opinions of judges and lawyers.
Douglas V. Gibbs

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