Supporters of "Original Intent of the Founding Fathers" ~ or "Strict Constructionists," as they call themselves practicing the philosophy of "originalism" ~ come in two forms; both dangerous. One group claims that the Constitution must be read literally and no deviation from what they read can be honored. The second group claims that whatever government does must be specifically mentioned in the Constitution. Both concerns are unworkable.
Late former President Richard Nixon, who was proven to be hostile to our constitutional principles, advocated "strict constructionism"; or the literal words of the document, as does the present president, George W. Bush. Oliver Wendell Holmes, probably the greatest Supreme Court judge in history, said judges need to be "loose constructionists." This article will consider both approaches.
CONSERVATIVES' ORIGINAL INTENT IF APPLIED
When we read the original words of Article I, Section 8, we see that Congress has the authority to "raise and support Armies" (paragraph 12) and to "provide and maintain a Navy" (paragraph 13) and for "calling forth the Militia (paragraph 15)." That's our national defense. Money for the "Armies" can not be for more than two years and the Militia can be called to national service only to "execute the Laws of the Union, suppress Insurrections and repel Invasions." Article II, Section 2, says the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militias of the several states, when called into actual service of the United States."
The "original intent of the Founders" doesn't mention an Air Force or a Coast Guard, therefore "originalists" who claim that everything must be mentioned need to dissolve the US Air Force and Coast Guard. The Founders were suspicious of standing professional armies, therefore wanted no permanent Army. Their "original intent" was that the Army would be raised from the state militias when needed. That's why Congress designates training, arming and disciplining of the militias even though they were state organizations. The Founders recognized the need for a small permanent ground force, so placed the Marine Corps under control of the professional Navy.
The only military weapons mentioned in the Constitution are "ships of war" (Article I, Section 10) and "arms" in the Second Amendment. To comply with "Originalists" demand that everything had to be specifically mentioned in order to be acceptable, we will have to eliminate all weaponry except those two. The reference to "ships of war" refers to prohibiting states keeping them during peacetime without congressional approval; it doesn't say the US can keep them at anytime.
Original intent of the Second Amendment was for national defense. Creator of the amendment James Madison's statement that, "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country," means national defense, and nothing else. That means the "original intent" was for that portion of the population eligible to be militia members had a right to "keep and bear arms." The Militia Act of 1903 organized the various state militias into the present national guard system, so the old state militias are the present national guards, but that didn't change the Second Amendment or Article I, Section 8, paragraph 16, that empowers Congress to arm the militias.
The only mention of highways in the Constitution is of "post Roads" (Article I, Section 8, paragraph 7). Original intent was to move the mail on horse-drawn wagons over dirt paths through the forests. "Original intent" would dictate that we can't load mail onto aircraft and fly it to other locations. There can be no interstate highways or national railroads; because they aren't mentioned in the Constitution.
Strict Constructionists and Originalists have always insisted on continuation of the political agenda of the 18th Century. That would leave many programs in question. They attack Social Security by citing Congress's rejection of a pension for a Revolutionary War widow. But they distort the Founders's intent. The proposed pension was rejected because it was "personal welfare" or "private welfare"; not the "general welfare" the Constitution authorizes in Article I, Section 8, paragraph 1, and which makes Social Security possible. It is also worth noting that modern "Originalists" and "Strict Constructionists" endorse and support Bush's scheme to turn Social Security into a "personal" system or a "private" program.
Then there's the matter of impeachment for miscreant presidents, vice presidents and federal officials. Founder Alexander Hamilton specified in Federalist Paper 65 the "original intent" on the issue as authorized on three concerns: a) actions involving violation of public trust; b) political in nature, c) bringing harm to the nation. None of these "original intents" were present in the Clinton impeachment; all were present in Nixon's Watergate capers, Reagan's Iran-contra subversion and Bush's war, National Security Agency spying on Americans, and many other actions. but we couldn't and can't get most "Originalists" behind impeachment of Nixon, Reagan and Bush.
Original intent was that only property-owning men (preferably white) be allowed to vote, but we amended the Constitution to allow every American 18 or older to vote. Amending was also "original intent"; so which original intent do we honor? Conservatives say the 14th Amendment doesn't limit state governments even though the intent of the 14th was to do just that.
The presidential oath of office does not contain the phrase "so help me God" but all "Originalist" Presidents did not eliminate that phrase. Nixon didn't, Reagan didn't, neither Bush did and all claimed to be Strict Constructionists who adhered to "original intent" of the Founders. The Supreme Court's "Originalist" RATS faction of Roberts, Alito, Thomas and Scalia won't clue those morons in on that either, and neither did the chief justices who administered the oath for those four bumpkins. Using the Bible to take oaths of office was not an "original intent" and appears to be counter to what the Founders intended, but "Strict Constructionists" adamantly demand the Bible be used at all swearing-in ceremonies.
In fact, the original intent of the Founders was that there be no mixing of religion and government. They wrote that into the Constitution twice. First in Article VI, that no religious test ever be required for a government post, and the First Amendment that says no laws concerning things established by religion, including religion itself. That means no laws for religion and no laws against religion. Modern Originalists in the Republican Party refuse to honor that separation while trying to infuse religion into government at every opportunity.
This brings us to the liberation of other nations and overthrowing regimes in the name of anti-communism or other reasons. Of course there was no communist movement at the time of our Founders so how could they have had an "original intent" that envisioned the anti-communism movement. Article I, Section 8, paragraph 18, says that flaws must be based on the powers the Constitution places with government, its departments and the officers of the nation. There is nothing even suggesting we can determine the governmental or political composition of any other nation. But "Originalists" ignore that principle all the time.
And there is nothing in the Constitution empowering government to legislate what we inhale, ingest or insert into our bodies, but Strict Constructionists trample each other rushing to make laws prohibiting drug use, even imprisoning deathly ill Americans who use marijuana for pain control and wasting billions of dollars in the process.
At a recent University of Portland (Oregon) ceremony Justice Scalia, as reported in the Portland Oregonian, said:
"Long-standing practices should win out over abstract rules when the U.S. Constitution is interpreted, Supreme Court Justice Antonin Scalia told a crowd of more than 1,500 Thursday at the University of Portland.
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Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of American journalism's leading constitutional experts through years of study at Georgetown University Graduate School of Government in Washington, D.C., and tries (without much success) to be patient with people who argue endlessly on subjects they have never studied. He is the author of "The Un-Americans: Trashing of the United States Constitution in the American Press", a critique of the mainstream media for ignorance of, or disdain for, our constitutional principles of self-government. He left newspaper work years ago, disgusted at the direction the Fourth Estate ~ under the mismanagement of ineffectual, out-of-touch, can't-do executives ~ was taking away from honest responsible journalism and the observation that there was no place in the mainstream media for a progressive, or liberal, constitutional "expert". Bonsell is an honors graduate of Woodbury College (Los Angeles, California) with a bachelor of business administration degree. He is profiled in Marquis Who's Who in America. (Self-portrait, above, was handled to make author/artist appear prettier than he actually is.)
Personal motto: Have brain; will use.
A good summary of the hypocrisy of the right's use of
“original intent” is presented. I would offer one small correction. Constitutional limitations on the use of a direct tax, forced the passage of Amendment XVI to authorize the IRS.
by
Samuel Bryan (0 articles, 0 quicklinks, 0 diaries, 111 comments)
on Wednesday, June 6, 2007 at 10:58:34 AM
Having any sort of protected status either, certainly not personhood, much less immortal personhood, totally immune to all but the most totally egregious actions, and even those, not at all subject to actual person consequences, like capital punishment or even incarceration.
Even the persons in the Corporation are rarely incarcerated, and then with much lighter sentences than a similar act by an individual.
by
Freedem (0 articles, 0 quicklinks, 0 diaries, 16 comments)
on Friday, June 8, 2007 at 7:44:22 AM
