Friday, 29 May 2009

• Founders Intent- Fixed Law or a Living and Breathing Document ?

   

  Last evening Paige asked a question about the living breathing Constitution here. The answer would completely hijack the blog so I chose to try answer her question here instead. In fact, this will be Part 1 of the answer Paige, let me lay out the foundation:

  Background

  From the time the Constitution was being framed there have been questions about how it is to be interpreted. The Federalist Papers were eighty-five essays urging the citizens of New York to ratify the new United States Constitution. They were written by Alexander Hamilton, James Madison, and John Jay.

  The Anti-Federalist Papers authors are thought to be  John  De Witt, Patrick Henry, Robert Yates , George Clinton  John Trenchard ,Thomas Gordon and Richard Henry Lee .They were opposed to its ratification. Many of these were minority positions in the framers constitutional convention debates. Some of the issues raised in these papers resulted in the adoption of the Bill of Rights, and have impacted some decisions of the United States Supreme Court on important constitutional questions.

  The Federalist claimed no Bill of Rights were needed as the government only had the powers designated in the document, where the Anti-Federalists saw the Constitution as a route to despotism and a national government. They were against a strong central government because they did not trust that a government would restrain itself.

  Framers Intent

  It was never intended that the supreme court possess the power it does today.  Alexander Hamilton, a federalist, in paper 78 says "that the judiciary is beyond comparison the weakest of the three departments of power¹; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers"

  Fundamental Precepts

  Lex, Rex had challenged the fundamental precepts of the day, the divine right of Kings. The doctrine of the day was that the king or state ruled as God's appointed ruler and the Kings word was law. Samuel Rutherford wrote  in Lex, Rex that law must be based upon the Bible, rather than upon the word of any man. Rutherford argued from passages such as Romans 13 that the king, as well as anyone else, was under God's law and not above it.

  Sir William Blackstone wrote Blackstone's Commentaries on the Law which became the ' "bible of American lawyers,". Blackstone's "Commentaries on the Laws of England" shaped the principles of law in both England and America when its first volume appeared in 1765. For the next century that law remained what Blackstone made of it. '

  Nature of Law in General

  "Law, in it’s most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey."

  Blackstone explains that the law is what it is. You cannot change gravity, motion or mechanics. The superior being, God, determined that they would be a certain way and that is what they are. Notice the inferior is bound to obey the superior. The inferior has no choice.

  "Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter out of nothing, he impressed certain principles upon that matter, form which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at hi own pleasure certain arbitrary laws for it’s direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it’s formation. "If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; - the method of animal nutrition, digestion, secretion, and all other branches of vital economy; - are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator." Blackstone said the continuation of life itself is a law that cannot be changed unless death occurs.

  "This then is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor the will, such laws must be invariably obeyed, so long as the creature itself subsists, for it’s existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior."

  Marbury vs. Madison

  "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

  "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

  If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

  Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. "

  "So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

  If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

  Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

  This doctrine would subvert the very foundation of all written constitutions.

  It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. "

  This is what is considered to be anchored law, law which has a foundational fixed basis to refer.

  Entire decision

  To be continued

   

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