Oh I agree with you that words have meaning, but to the extent you think its ok to infer rights that aren't specifically spelled out, I think you're being inconsistant. The guarantee of a republican form of government in Art. IV, sect. 4 does not explicitly state any protection for free speech, religion, assembly, etc. so in 'fleshing this out' and referring to history and well established political science definitions (BTW, "well established" when and by whom?) you are inferring rights where there are none specifically enumerated and engaging in the exact same kind of legal interpretation and creation of rights you rail against.
Not at all. As I said, words have meaning. For example, there was a time in the history of the courts when they would go to great lengths discussing the precise historical meaning of the Constitutional term "direct taxation." A judicial activist, however, would not care to ground himself in the actual relevant historical meaning of that term. He would look to interpret it freed from any objective or relevant anchor at all, so as to benefit his particular preference for Federal taxation power. An originalist/strict constructionist, on the other hand, would be very much interested in what the framers believed they were saying when they used that term. In order to find that out, they would research how the most influential economists of that time used it. In this case it was Adam Smith. He used the term frequently, and clearly expressed its meaning. He was a contemporary of the framers of the Constitution, and it is well known that the framers of the Constitution were well versed in his writings, and in fact used the term in their own writing consistent with Adam Smith's usage, even referring to Smith, therefore
this is the meaning attributed, by the originalist/strict constructionist, to the framers, so this is the interpretation they give to it in the Constitution.
See the difference between manufacturing powers that aren't there and merely delving into an analysis of what words meant to the framers of the Constitution? One seeks to make the "
interpreter's" will into law, while the other seeks to understand the law that was actually enacted by the framers. One is a despot, while the other is a judge exercising judicial temperament.
As you said, "The Constitution's meaning is clear" but then you go on and want to infer rights by fleshing out, referring to history and "well established" political science definitions, to manufacture meanings rather than relying on the actual written text of the document.
I believe what I actually said was that
most of the Constitution's meaning is quite clear. The
most word is the key. Some of it may not be clear at first glance, but is certainly knowable by a sincere exploration of the framer's intentions, as I discussed above. This is what an originalist does, at any rate, and at the time of the Founders, originalists were the only kinds of judges there were. It was considered criminal, in fact, to be anything else.
Umm...excuse me? Understanding the various delegations of power to the federal government in such a manner as to not make the 10th Amendment meaningless? The 10th amendment states; "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." The commerce clause is just such a power delegated to the federal government to regulate commerce between the states. To the extent something may affect commerce between the states, it may be validly argued it is fair game for regulation by congress...unless you want to resort to applying the same sort of overly expansive view of the 10th Amendment as the Court has used in interpreting the commerce clause. Remember, the 10th carves out for the states and the people everything not already delegated to the federal government by the constitution, and the commerce clause was just such a delegation of authority to which the 10th is subject.
An interpretation of the commerce clause that would make the Tenth Amendment meaningless would be any interpretation that did not seek to
narrowly interpret the commerce clause. An expansive interpretation, i.e., one which goes beyond the actual and necessary meaning of words objectively found in the clause, would mean that the Tenth Amendment reserves, essentially, nothing to the States, when, to the contrary, we know from reading the Founders that quite the opposite was their intention, viz.,
"
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." - Federalist No. 45 Madison
You can call what has happened with the commerce clause in the last few years a "manufacturing meaning that never was" but its really just an interpretation of the extent of that grant with which you don't agree.
No, I have distinguished
manufacturing law from
interpreting it already. There is a difference. Words have meaning.
And if you think the entire constitution now has to be judged against such an expansive interpretation of the 10th amendment that it excludes and cuts off prior grants of authority, you are "manufacturing meaning" to expand the 10th and restrict Art. I powers no less than the court did in Wickard or Raich (but to expand the commerce clause at the expense of other constitutional provisions).
The correct interpretation of the Tenth Amendment requires no particular
expansiveness. Simple objectivity and the ability to read basic English will do. If that is not enough, you may look to the writings of its authors, such as Federalist No. 45 provided above.
FWIW, I too think the commerce clause has been extremely overused as a basis for federal legislation, but I see it as a valid (however poor) interpretation of the constitution and the commerce clause by the SCOTUS. Its our duty (and failing) as citizens to rectify that by voting in a president and Congress that will appoint and confirm good judges to the SCOTUS.
The framers also clearly set out the body by which questions arising from the constitution would be decided - the SCOTUS.
Yes, questions in law and equity, however they were not actually given sole charge over the actual interpretation of the Constitution. That would be to establish an aristocracy. No, Congress, our elected representatives, may limit the appellate jurisdiction of the Supreme court with simple legislation to that effect. Congress can, in fact, if it so chose, entirely eliminate all Federal Courts except for the Supreme Court. It could even entirely eliminate the Supreme Court's appellate jurisdiction. So no, you are mistaken on this point as well.
Geez, talk about circular reasoning. IOW, since you interpret the intent of the framers to intend strict construction, your interpretation is correct? Sorry, but the logic there is almost laughable.
I suggest you analyze my logic more carefully, if that is your conclusion. To the logical mind, it makes perfect sense.
Can you show me where in the Constitution the judiciary is required to apply strict construction (or your interpretation of strict construction)?
Yes, by referring to justices as
judges it identifies them as persons who will exercise
judicial temperament, i.e., a strict adherence to original intent. Any judge who would divorce his rulings from a strict adherence to original intent was considered a criminal, since authentic law only lies in the intent of the law's framers. All else is despotism. Thomas Jefferson wrote extensively on this point.
Nevertheless, if you want to apply strict construction, then you must necessarily start with strict construction of Art. III and accept the premise that the SCOTUS has the authority to make those determinations, not you, since the framers clearly set out the role of the judiciary and didn't specify you as the determiner of questions arising from the constitution.
Not me, nor you,
nor the judges, but the
original intent of the framers, as I've said from the beginning. All else is despotism.
