May 7, 2016 at 9:24 am #196
Post your link on the Constitution here. One link per post, please.
The living document fallacy
If you’ve done any debating on the Constitution, you’ve probably heard the term “living document.” It’s the idea that the framers designed the Constitution to be reinterpreted as the times change. Often cited is the constant changing of supreme court rulings as evidence of the concept. Nothing could be further from the truth.
First and foremost, the founding fathers deliberated at length over the specific meanings of every aspect of the Constitution. There were intentions behind nearly every word, its placement within the text, and even its grammar, punctuation and capitalization. Understanding that is not enough, though, if you lack context. Fortunately, we have several writings that give us such context, including The Federalist Papers, The Anti-Federalist Papers, the Philadelphia Constitutional Convention debates, and even the individual state proposals for the Bill of Rights. As many have pointed out, the living document argument, along with the idea that the “Necessary and Proper” and “General Welfare” clauses are intended to grant the federal government unlimited power, is rendered impotent by pointing out that Article 1, Section 8 specifically outlines express, delegated powers to congress. If the General Welfare clause was intended to grant congress unlimited power, there would have been no reason to create Article 1, Section 8.
To reinforce this idea, the states created the Tenth Amendment to solidify the notion that the newly created federal government had very limited powers. The Tenth Amendment says “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.” In other words, it was the states that created the federal government to work for them, not the other way around.
According to Liberty’s Lobbiest KrissAnne Hall, when trying to determine the meaning (and application) of an ambiguous section of a legal document, the protocol is to refer back to the intentions of those who drafted the document. As mentioned above, we have multiple sources of reference written by those who drafted the Constitution.
There’s also a general rule that a court will construe ambiguous contract terms against the drafter of the agreement. So, even without context, courts *should* feel compelled to rule in favor of more freedom for the citizens. Unfortunately, as KrisAnne Hall regularly points out, federal judges are appointed by, and so beholden to, the federal government, not the people. As a result, federal judges have a track record of usurping power from the people into the federal government. It is this abuse of power that liberty lovers are fighting to reverse.
If all of that isn’t convincing, consider the question “If the authors intended the Constitution to be a living document, why did they create a process for amending it?” If we were intended to reinterpret the meaning of the Constitution with the changing times, there would be no need for an amendment process.
The Second Amendment
You will likely engage in debates regarding the Second Amendment, which reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The negative argument usually comes in the form of arms only being rightfully carried by militiamen. One of the best arguments we’ve heard against such a position comes surprisingly in the form of a linguistics counter. It goes like this.
If we change a few words in the second amendment, its intentions become more clear. When read as “A well educated workforce, being necessary to the prosperity of a free state, the right of the people to keep and read books, shall not be infringed” the meaning becomes crystal clear that arms, like books, are not intended only for a particular segment of the population.
Keep checking back for updates to this topic.May 14, 2016 at 2:35 pm #340
State constitutions provide evidence to the intended meaning of the Second Amendment of the US Constitution.
Some key entries:
“Massachusetts – The people have a right to keep and bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. (Mass. Const. pt. I, art. XVII) (1780).”
“North Carolina – That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. 1776 Bill of Rights, § XVII.”
“Pennsylvania – The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. (Pa. Const. art. I, § 21) (1790).”
“Vermont – That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. (Vt. Const. ch. I, art. 16) (1777).”
“Virginia – That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. (Va. Const. art. I, § 13) (1971; previous version 1776).”May 15, 2016 at 12:28 pm #362
Discussion on the second amendment proposals by the various states prior to ratification.
Virginia’s Requested Amendment
That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.
Virginia’s was an almost word-for-word copy of the Virginia Declaration of Right’s passed by the state 11 years earlier. New York’s was split into 3 parts and you can see Virginia’s influence in the wording.
New York’s Requested Amendment
That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.
James Madison took the proposed amendments from all the states, summarized them, and submitted 20 amendments to Congress. His summarized 2nd amendment read:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
After debate only 12 amendments survived to be sent to the states. When it emerged the wording of the 2nd amendment was cut/rearranged to the one we know today:
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
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