The “troll” part was more about the axe grinding, which he goes to great length to accuse Curtis of, when hypocritically it is entirely clear that he wrote this book and carefully chose his quotations with the intent of proving the widest possible interpretation of his pre-determined conclusion about the meaning of the 14th Amendment.

(Yes, I know, I’m batshit crazy for actually reading that entire book just to have an informed discussion on an obscure blog somewhere)

In any event, it does open my eyes considerably. We tend to imbue the framers of the Constitution with a mythic heroic aura of people trying birth a state in liberty. It’s clear from this book that most of them were bickering petty partisan politicians.

The conclusion it brings me to, personally, is that “original intent”, as meant by the people that are currently using it (as opposed to how I mean it), is far too dangerous a means to use for interpreting the Constitution. Well, besides that, it seems to be being used more or less as “reactionary conservatism”.

It’s far too easy to find your axe, and then grind it on the words of one or the other side of the debate over the meaning of a particular clause, while ignoring the other side, and indeed the plain and simple clear meaning of the words of the Constitution itself.

I restrict myself to honoring “original intent” only in that the words of the Constitution should be thought of as having their plain simple English meaning at the time of their adoption (as opposed to reinventing the meanings of the words to their modern linguistically drifted ones, as has been done with phrases like “well-regulated militia”). If the framers wanted it to mean something else, they should have chosen their words more carefully.

Surely, if there were a clause in the Constitution something like “the pursuit of being gay” rather than “happiness”, we can’t take our modern meaning of the word “gay” and apply it to only giving people the right to try to be homosexual (though I think people should be free to pursue that modern meaning if they want).

But I’m completely uninterested in going past that to some kind of bizarre argument about what kinds of things might have made people happy in the 18th century, and therefore what they “meant” by the “pursuit of happiness”. Or, indeed, what the racist politicians of the time might have thought of as the “proper place” of the negro, or of women.

If watching TV makes people happy today, and it doesn’t interfere with the rights of others to pursue happiness as they see fit, I’m perfectly ok with interpreting the Constitution as saying people shouldn’t be arbitrarily restricted from watching however much TV they want, even though TV didn’t exist at the time.

Blessings,

Ray, on the other hand, your dig at the widely recognized and respected constitutional scholar Raoul Berger as a “racist troll” says far more about your rush to judgment than it does about that great man. Don’t be so quick to slander ideas to which you haven not been exposed before. The jurisprudence of the Constitution is a difficult subject with a wide range of dissenting opinions. It’s not as clear cut as you would like to make it appear. Trust me … as a bar certified lawyer with a JD plus a masters in law, if you think a legal argument is simple and straight-forward, it’s probably because you’re overlooking something.

I had not imagined possible that a serious scholarly book could be that axe-grinding and plainly racist.

I guess trolls are not as limited to the internet age as I had once thought.

Article V doesn’t lay out any time limit for ratification, so you have to accept that it has been properly ratified by 3/4 of the states, even if there were some improprieties at earlier dates.

And, in fact, there were no significant improprieties. The southern states had seceded. The U.S. was free to make any conditions it wanted on the readmission of those states to the Union, and they did i8n fact ratify it (and the 13th and 15th).

In a Common Law system, the decision of a higher court *always* create binding precedent for all lower courts and interpret the law for them. The goal of this is to have a legal interpretation that is uniform (i.e. “common”) across the jurisdiction of the court system.

This is in contrast to “Civil Law”, in which precedent is not binding from court to court (only within 1 court). And, indeed, there isn’t really such a thing as binding precedent in Civil Law.

The reason that the Supreme Court can in effect declare a law unconstitutional is that its precedent is binding on all lower courts. Indeed, it doesn’t “throw out” laws (though this is a common idiom for it). It merely makes them unenforceable in the legal system. Many unconstitutional laws remain on the books in numerous states (impotent). The courts cannot make law, nor remove law. They can only refuse to enforce it.

If you want Civil Law in this country, you would need a very different Constitutional Amendment.

When we talk about judicial supremacy, we merely mean that some beleive that the court is the last voice (regardless whether its decisions are right or wrong). There is really no basis for this conclusion in the Constitution. Congress can exert itself if it will, but has never done so, even though the problem with activist judges was present even in Jefferson’s day. That is why some other device will have to be found if the 9th & 10th will ever be more than dead letter again.

Although expressly permitted to regulate the court’s jurisdiction, presently, Congress only passes laws limiting judical review to things like highway construction to prevent them from getting tied up by environmental litigation, but has been unwilling to reign the courts in on issues of judge made constitutional law. Congress could make findings and declarations of fact to the intended operation of the 14th Amendment and then limit judical review to comport with those limits, but it is unwilling to do so, and it is unclear what the courts would do if it tried.

Meanwhile, the nation is being bankrupted by a federal government whose constitutional reach has been expanded beyond its ability to pay the tab. If we are to save the nation, we better find a way to reign congress and the courts in ASAP! Or, maybe, Washington will go broke and close shop. Wouldn’t America be a better place then?