Saturday, September 26, 2015

Forget the Framers, it's the Ratifiers who count




I'm with Madison.  It's not what the lawyers meant when they drew up the contract, it's what the parties thought they were agreeing to. 
"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses".
 —James Madison to Thomas Ritchie, 15 Sept. 1821

[Crossposted @ newreformclub.com with a wee bit of political commentary appropriate for there but not here.]

4 comments:

Jonathan Rowe said...
This comment has been removed by the author.
Jonathan Rowe said...

I can respect what Madison wrote. And I think we all have deeper philosophical theories which undergird how properly to interpret the constitution.

I agree that the notion of "consent of the governed" -- i.e., "social contract" is part of the system. But philosophically, that those who "ratified" are all dead (and indeed the franchise from which they were permitted to be ratifiers is unjustifiable in the sense that it was a minority of adults who were even permitted to vote on behalf of the majority of adults who were living at that time) calls for a corrective.

Jefferson's corrective (if I understand him right) was to hold a new constitutional convention or something along those lines every generation, just to make sure the consent of those alive were not taken for granted.

Randy Barnett, after Lysander Spooner also offers such a philosophical corrective. Indeed one that immunizes from the "race, class and gender" nuclear bomb.

Tom Van Dyke said...

Jefferson's corrective (if I understand him right) was to hold a new constitutional convention or something along those lines every generation, just to make sure the consent of those alive were not taken for granted.

Randy Barnett, after Lysander Spooner also offers such a philosophical corrective. Indeed one that immunizes from the "race, class and gender" nuclear bomb.


Constitutional lawyer and conservative talk show host Mark Levin [#1 on the NYT bestseller list for most of the summer] agrees.

https://en.wikipedia.org/wiki/The_Liberty_Amendments

Now, I'm with most folks that rewriting the Constitution from scratch would do more harm than good. But after the usurpations of the past 50 years by the presidency and the Supreme Court [to a lesser degree, Congress], I agree with constitutional lawyer Mark Levin is quite right that a new constitutional convention is needed to roll back these power grabs.

Unfortunately, the GOP only controls 30 states, and 34 are needed. The states in the hands of the Democrats are quite happy with Obamacare and Obergefell, and so we must continue to muddle through with whatever's left of the Constitution.

Still, one can dream. Article V of the Constitution, you could look it up. Jefferson and Barnett's legal sedition is quite constitutional.


Conservative talkradio host Mark Levin made news Thursday when he addressed the annual conference of the American Legislative Exchange Council (ALEC), a "non-partisan membership association of state lawmakers," and it wasn't just because he reiterated his call for an Article V "Convention of the States" to propose new amendments to the Constitution.

Levin's call for an Article V Convention of the States has been well known since the publication of his best-selling book, The Liberty Amendments, more than a year ago.

On Thursday, Levin framed the Article V Convention of the States as the beginning of the process in which state legislators can reassert their constitutional power and become, in effect, the kind of check on the out-of-control federal government the framers expected the three branches of federal government they created in the Constitution would be on each other.

"Take your power back," Levin told the enthusiastic crowd of state legislators from around the country.

Critics who claim an Article V Convention could become a "Runaway Constitutional Convention" miss the point entirely, Levin said. Critics think such a convention would have no impact, as the federal government is ignoring the Constitution already and would have little reason to observe any amendments, subsequently ratified by the states, that emerged from the Convention of the States.

"So if you ask me what makes you think the federal government will follow amendments to the Constitution if it won't follow the Constitution today, then you don't understand this process," Levin told the audience.

"By giving the state legislatures the ultimate say on major federal laws, on major federal regulations, on major Supreme Court decisions, should 3/5 of state legislatures act to override them within a two year period," Levin said, " it doesn't much matter what Washington does or doesn't. It matters what you do."

"The goal is to limit the entrenchment of Washington's ruling class," he stated.

"If you're going to go through this process, don't get myopic. Don't get caught up in one issue," Levin added. "This is a structural, systemic issue. We're trying to restore the republic and save what's left of the Constitution."


Now, although I'm unapologetic righty, I'm also a Burkean conservative who disdains such political earthquakes. But I'm warming up to Jefferson and Barnett's sentiments here. [And anyone who dismisses Mark Levin as a Glenn Beck-type crank or fool is MSNBC-lazy. Levin got serious chops.]

Jonathan Rowe said...

Ha. Levin & I (and older middle bro Mike) have the same law school credential. Though Temple seems to have erased him from their memory.