The Father of the Constitution on the Constitution

As we continue to sit around and wait for Justice Kennedy for make up his mind on Obamacare’s Individual Mandate, after Dear Leader has threatened the Supreme Court and accused any justices so foolish as to oppose his grand plan of “judicial activism,” I thought I’d take the time to post some typically unenlightened and primitive thoughts regarding the judicial activism, the Constitution, and the unevolved 18th-century knuckledraggers who framed it.

When debating with liberals and similarly highly-evolved progressive-minded folks on constitutional issues, including the HHS mandate I’ve been ranting about lately, I’m often told essentially that the federal government can do whatever the hell it wants in such matters because there is no right specifically written in the constitution (in the case of the HHS mandate) for religious employers to not pay insurance that covers their employee’s contraceptives/abortifacients.

While I actually do find this suddenly newfound concern for the letter of the U.S. Constitution by liberals touching, as usual, they have it back-asswards. (In constitutional law as practiced or understood by most liberals, nebulous and ethereal entities as the “Emanations of the Penumbra”- which means literally an “emission from a shadow” – take supreme precedence over that unimportant text that’s actually clearly written down in Constitution in black and white. A lot of the same bleeding hearts who insist that such unwritten Emanations hidden deep within the Penumbra as the absolute right to abortion or gay marriage are beyond any question or doubt will insist just as vehemently that such statements as “the right of the people to keep and bear arms shall not be infringed” are some kind of arcane literary metaphors not to be taken literally, and which us rubes without advanced law degrees could never hope to understand. Of course, the rest of us unenlightened types smell the distinct emanation of bullshit.)

Today’s illiberal “liberals” regard the powers of the federal government as being virtually limitless, constrained constitutionally only where it is very explicitly spelled out that the federal government cannot do some very particular thing. Though, of course, in the vast majority of those cases, they can confidently trust that the SCOTUS justices will handily pull some Emanation out of the Penumbra granting the federal government some long-dormant power heretofore unrecognized to do whatever it is that “needs to be done.”

This is why liberals were aghast at the possibility that the Supreme Court might not in fact give a green card to Obamacare’s Individual Mandate. Suddenly, Obama and other government leftists are calling into question the rulings of the all-powerful Black-Robed Ones, of whose decisions, Nancy Pelosi once said were “almost as if God had spoken.”

On the other hand, for the “liberal” statist, the lowly citizenry of this land have no rights beyond those explicitly stated and spelled out (that is, again, unless an Emanation of the Penumbra is discovered nullifying it). Since the Constitution doesn’t spell out word-for-word the right of those who run Catholic institutions to choose health care plans which don’t violate their deeply-held moral beliefs, then it simply must not exist. Of course, if the proposed mandate in question involved a more politically correct religion – say, a mandate demanding that all Muslim institutions serve pork – no doubt the bleeding hearts would be singing a quite different tune.

However, James Madison, the man rightly regarded as “The Father of the Constitution,” saw things quite differently. A he wrote in The Federalist 45 (January 1788):

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

In The Federalist 39, he writes

In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

This, of course, is the basis of the Tenth Amendment of the Constitution which states plainly: “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.”

Of course, this part of the Bill of Rights has been neglected for decades, if not centuries, and many liberals contend that successive amendments have somehow rendered this inconvenient amendment obsolete.

Of course, discussing the views of Madison or any of the other framers of the Constitution regarding their intent with “liberal” statists is usually a futile exercise, for typically at this point they will start driveling something about how the high-tech world today is so much more “complex” than those primitive knuckle-dragging apes in their powdered wigs could have conceived, and that therefore the constitutional principles of yore can no longer apply. As though the horseless carriage, YouTube, and Twitter somehow render the principles of freedom and limited government obsolete. Of course, this is nonsense. Freedom remains freedom and tyranny , tyranny, just as much in the 21st century as in the 18th.

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7 thoughts on “The Father of the Constitution on the Constitution

  1. First- as someone who has studied the founding fathers for decades- I find the belief that the constitution, which was written well over 200 years ago in a world that in no way reselmbes the current reality- that it his highly disprecpectful to these great men to claim that their views and opinions would not evolve with the world around them.

    Nest- I will take issue with something from the middle of your post as it is a major pet peeve. You, like so many others, conveniently leave out the first half of the 2nd ammendment- “A well regulated militia, being necessarry to the security of a free state….” One of the founding fathers greatest fears was a standing federal army. Hence- the state militias that could (or not) serve the nation at times of crisis at the pleasure of the state governors. Of course this is a right we gave up long ago. And ironically the biggest supporters of this constitutional abomination are also the biggest supporters of the 2nd ammendment- or should I say- *their* interpretation of it. And of course- as much as the right loves to bitch about taxes- the military budget- which accounts for over half of all taxes- is inviolable- despite it being completely against the beliefs of the founding fathers.

    And really- the individual mandate? A republican idea from the late 80’s, refined by the Heritage Foundation, pushed by the republicans during the “hilary care” debates, incorporated into Romneycare and praised by the GOP and the Heritage Foundation, and initially opposed by Obama until it wasinsisted on by both ranking republicans and by democrats who for 2 dacades had come to realize it was the only way to get republicans to sign off on healthcare.

    so…sorry- what was your point?

    • Hi Drugs,

      I rescued your comment from the spam folder, because, although I must disagree with the bulk of it, I didn’t think your efforts at replying to my post deserved to go unpunished.

      Regarding your first point: I think it highly disrespectful to those great men to presume that they would readily completely abandon and reverse their wise principles to jump on board the Hopeychange wagon, or whatever the current mindless statist political fad happens to be. History may change, but reality and human nature stay the same. I think it safe to say that most of the American founders would be in support of an armed revolt against the current government, which has become large and oppressive far beyond the wildest dreams of His Majesty George III.

      Regarding the 2nd Amendment and gun ownership rights:
      1) There’s only one “m” in “Amendment.
      2) The “well-regulated militia” phrase, using the principles of basic English grammar, is a supporting reason given, not a conditional statement. The militias of the several states were composed of private citizens with privately-owned weapons.
      3) In the Bill of Rights, the word “right” *always* is used to refer to those of individual private citizens, *never* to governments, which instead have “powers.”
      4) The writings of Madison, as well as all of the other framers of the Constitution and Founding Fathers, make it more than clear that they were in favor of a right to the private ownership of arms by private citizens, not just some corporate right of state governments to have militias. I don’t have time or space to quote them here, but you can do your own homework. I will probably write more fully about this topic in a future Rant, but for now, let’s keep it on topic.
      5) So are you implying that you would be in favor of abolishing the standing army, yet are in favor of the government taking away guns from the citizenry? How’s the government going to accomplish this gun grab? Through some other “constitutional abomination” (or is it “Obamanation”) of a federal police force? Lay off the drugs, bro, they’re bad for you.

      Regarding your last paragraph: Where on here did I claim to be a fan of Romney, Romenycare, or of all Republican politicians? Contrary to popular lefty opinion, “Republican” and “conservative” are not necessarily synonymous. There’s a lot wrong with the current GOP “leadership,” and a lot more wrong with the Democrats. My views here are my own, and not intended to reflect those of any particular politician or political party. I’ve said plenty about the HHS mandate in my other posts, so you can read them if you’re truly interested in my thoughts on the matter.

      My point is simply that the notion that the powers of the federal government are limitless and to be assumed unless proven otherwise, while assuming the rights of private citizens and individual states are only those specifically enumerated, is blatantly contrary to the views of the Constitution’s framers. Yours?

    • Stinsky says:

      I never gave up any right. The Second Amendment limits the power of the Federal Government–the dependent clause tucked into that prohibition doesn’t negate the limitation, even if you personally feel (or even a whole bunch of people personally feel) that we no longer have to worry about a Federal Government using its recourse to legalized violence to harm others. Nothing like that happens, anymore, of course. We don’t have government agents who shoot pregnant women on their own property because the owner possessed property the government whimsically deemed inappropriate for possession by mere plebeians.

      Republicans are statists, too. Brilliant observation. It doesn’t negate Constitutional violations by either wing of the American Fascist Party.

  2. I actually think we may agree more then you believe- but I also think you missed my point.

    The founding fathers feared a centralized/federal military. Something we have long ago handed over to them without a fight. And this military has become so overwhelmingly armed that the idea of a revolution of the people has withered and died along side with it.

    And the founding fathers were VERY clear. The people should own guns to participate in a local militia. This is a far cry from the current reality, and they never touched the subject of self defense.

    Yes- they would be shocked at our government, but they would be even more shocked at the pathetic state of society. And the hate, fear, and gun violence.

    Personally- I like Oregons systyem where so long as your local sheriff doesn’t think your insane you can own fully automatic heavy weapons. But I don’t believe the 2nd amendment has anything to do with “Stand your ground” laws.And I have witnessed too many situations to believe that anyone who wants to carrying a gun makes us safer.

    The numbers show personal responsibility has gone out the window so to speak. And people like Zimmerman chasing down a “suspicious” person while carrying then getting in a tussle and claiming self defense does gun rights a huge disservice, and is a slap in the face of the founding fathers. And I would say the same for the NRA.

    Give me a 50 cal mounted in the bed of my pickup, and an m-16 over and under at home. But stop these yokels who live in fear of their shadows and insist it’s their right to shoot first and ask questions later.

    • Drugs,

      Your last comment sounds suspiciously close to “Give me my right to self-defense and guns; just be sure to keep them out the hands of them dumb yokels who didn’t vote for Obama nor share my enlightened progressive views!”

      While I’m not familiar with Oregon’s laws, and will have to do further research, I’m suspicious of anything that limits the constitutionally-guaranteed right to keep and bear arms from those the local sheriff (or any other local or national government official) thinks are “crazy,” or any other such subjective judgment. Any reason for denying this right to those who are not convicted felons is treading on very dangerous ground.

      As for “stand your ground” laws, must one wait until a threatening intruder actually fires at or attacks you/your wife/kids/mother before they can pull the trigger? By that point, it’s usually too late. And quite frankly, if one willingly chooses to break an enter into another’s property, whatever he gets is his fault. I’m not going to shed too many tears over the fate or “civil rights” of criminals stopped in the act by their would-be victims.

      I haven’t closely followed the Zimmerman/Trayvon case, but last I heard, Zimmerman was convicted of second-degree murder. It seems to me that it boils down to a case of two guys getting in a fight, and one shooting the other, that’s been turned into an absolutely ridiculous political circus by the usual leftist race master-baiters.

      Also, the vast overwhelming majority of murders and gun violence in this country are committed by gang members and other criminals who don’t give a rat’s ass about second amendment rights – or the rule of law in general. They obtain their guns illegally with no problem, and this situation won’t be improved by depriving law-abiding citizens of their right to defend themselves against them.

      As for the founding fathers and the second amendment, the right to keep and bear arms applies whether they are used in militia actions or not. The idea that citizens have a right to defend their country or state, but not to self defense is absolutely nonsensical. The right to defense of state is meaningless without a right to self defense. What good is defending your state if you can’t defend yourself?

      “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”
      (Some anti-gov fear-mongering James Madison, author of the Bill of Rights, in Federalist Paper No. 46.)

      “I ask, sir, what is the militia? It is the whole people, except for few public officials.” (George Mason, 3 Elliot, Debates at 425-426)

  3. Stinsky says:

    Beard vs. United States. Our right to life (acknowledged in the Bill of Rights) covers the right to self defense. The second amendment is merely proscription against the government violating our property rights as regards weapons.

  4. Baked Basement Nerd says:

    I dig the blog, man.

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