Wednesday, August 21, 2013

Common understanding of the Constitution vs judicial interpretation

When the nation's founders wrote our founding documents, letters to each other, and essays for public consumption (eg the Federalist Papers and the Anti-Federalist Papers and other writings such as Paine's Common Sense), they chose their words very carefully. They chose words of which the common man of the day understood the meaning.

To understand what the founders wrote, we must understand the meanings of those words as they understood them. It isn't rocket science. Most of the words they used have the same meanings today. The common meanings of a few of their words have evolved a bit and having a copy of Noah Webster's 1806 A Compendious Dictionary of the English Language and/or his latter 1828 dictionary at hand make it easy to understand what the writers meant.

Also, the founders seemed to have had a much larger vocabulary than most well-educated Americans have today, so even a modern dictionary can sometimes be helpful in understanding their writings -- even in reading the newspapers of the day.

Nevertheless, any American with the literacy we expected of a 9th-grader 100 years ago can read the US Constitution and interpret its original meaning.

Unfortunately, in 1803, US Supreme Court Chief Justice John Marshall in Marbury v. Madison endorsed judicial usurpation of the sole responsibility and authority to interpret the US Constitution and all other federal, state, and local laws and to determine the constitutionality of legislation. "It is emphatically the province of the judicial department to say what the law is," he declared.

Because of the Marbury v. Madison opinion, the interpretations of the courts became supreme instead of the plain meanings of the words in the founding documents themselves. So, Christopher Langdell introduced his case law method in the 1870's wherein lawyers now study case law and must refer to libraries filled with legal precedents to divine what the courts "say what the law is."

Case law is based on what was opined by some judge somewhere in the past and often contradicts or overrides the legislated law and even the will of the People (both of which sometimes do need some overriding). Case law can be changed at the whim of any judge. Almost no law school teaches the Constitution (the supreme law of the land) anymore. They only teach case law which is nothing more than often-wrong, often-contradictory, and constantly-changing opinions of judges. Case law not a system of law that our founders understood nor would they agree with it. What case law does is protect an anti-Constitution power grab by imperialist judges.
Why should jurists feel compelled to defer to unconstitutional precedent that was born of the casting aside of constitutional precedent? — Selwyn Duke
Justice Marshall's statement that "It is emphatically the province of the judicial department to say what the law is" has become true only because of case law. The courts have so badly distorted and confused the true meaning of the Constitution with their own opinions, that it takes considerable research to learn what unelected imperialists in black robes want the Constitution to say. Most Americans are ignorant and/or lazy enough to allow the courts to get away with this usurpation of power -- even though they are often wrong!

Marshall's statement, which is accepted as the law of the land, conflicts with the US Constitution itself. The Constitution requires every officer of the federal, state, and local governments, whether elected, appointed, or employed, to swear an oath of loyalty to the Constitution and to defend it. Every public officer, every voter, and every member of a jury has a sacred duty and right to challenge, rescind, and/or nullify unconstitutional laws. Regardless of what Marshall and his adherents say, the court does not have final say in what the Constitution says. Yet, we meekly defer to Marshall's imperialist and arrogant usurpation.

That is not the heritage our founders created for us.

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