The Coming Constitutional Debate

16 May

We will be taking a hard look at the Constitution of the United States of America and the implications of the judicial involvement within the words and interpretations of those words in the Constitution.  Our inspiration comes from a phenomenal piece by Stephen J. Markman, where it appeared in Imprimis in April of 2010.

Here we will outline, and continue in additional blog posts, the cases that are made my Mr. Markman.

1. Privileges or Immunities Clause

Proponents of a “21st century constitution” or those that believe in a “living constitution”  see the due process clause of the 14th Amendment as a way to seek additional federal oversight into  state and local laws.

2. Positive Rights

Again, using the privileges and immunities clause, proponents of the 21st century constitution may desire to change the Constitution from being a guarantor of “negative liberties” into a charter of “affirmative government” which would therein guarantee “positive rights” to people.  The Framer’s Constitution “defines individual rights in terms of what the government cannot do to you,” (Markman, 2010), NOT what the government should provide to you or guarantee you a right to (i.e. Healthcare).  This has many potential negative implications for the concept of liberty and the opportunity for prosperity (not a guarantee of prosperity).

3. State Action

The requirement of state action as a precondition for the enforcement of rights (as set forth in the due process and the privilege and immunities clause), is another barrier for 21st century constitution proponents. State powers (as re-emphasized in the 10th Amendment) protect individuals and states from federal intrusions (i.e. protecting states’ funds from being manipulated or re-distributed to other states).

4. Political Questions

Federal courts are beginning to assert themselves into decisions where the judiciary had never before been involved. In 1803, Chief Justice John Marshall in Marbury v. Madison explicitly stated that political questions were not to be made in court.  As recently as 2008, the Court decided upon a case dealing with foreign nationals, the military, and prisoners of war (Boumediene v. Bush).  One can see the implications from having the Court decide more and more political questions.

5. Ninth Amendment

“Many 2st century constitutionalists understand this amendment to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges” (Markman, 2010).  The 9th Amendment was created to emphasize the limited power of our national/federal government – not leave this an open-ended statement up for interpretation.

6. Transnationalism

This is the concept of having international law meld and mix with domestic law.  This would make domestic judges more reliant upon foreign laws to make decisions affecting the United States, and could potentially open a pandora’s box of sanctions against people of this country for “war crimes” and “violations of the Earth”.  And again, more and more decisions would be given to judges as officials and interpreters of the law.

Read the Whole Essay Here

Folks, we have so much work to do to secure the Constitution as written and interpreted by FREE MEN – The Founders and Framers of the United States of America.

– Tisha Casida

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