The Extension and Intension of the Constitution

We must begin this discussion with the definition of the words in the title:
"The intension of a concept consists of the qualities or properties which go to make up the concept. The extension of a concept consists of the things which fall under the concept; or, according to another definition, the extension of a concept consists of the concepts which are subsumed under it (determine subclasses)" source 

The intension of the Constitution is, therefore, the qualities or properties which go to make up the concept. What is the concept? It is supremely simple, and in two parts: the first quality is that of a government more able to deal with national problems than the Articles of Confederation allowed for; and the second property was to make a government less able to violate the rights of minorities. The second quality was the biggest intensional concern of James Madison, Patrick Henry and others, and it is the one that has seen its extensions go awry, since the era of the New Deal.

The extensional parts are the subclasses of the intensions; they are the things which 'fall under' the concept(s). Article 1, Section 2 explaining the composition of the Congress, is therefore an extension of Section 1, explaining that there shall be a Senate and a House.

"The Constitution does not give you rights," explains the Constitutionality Crisis. "The founders considered your rights to be 'God-given' or 'natural rights' — you are born with all your rights. The constitution does, however, protect your rights by:

• Limiting the powers of government by granting to it only those specific powers that are listed in the Constitution; (This has not proven to be effective of late.)
• Enumerating certain, specific rights which you retain. These are listed in the Bill of Rights." [emphasis in original]

The Constitution, in turn, is an extension of John Locke's famous intensional statement about the state of nature specifically, that it "has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. [John Locke, The Second Treatise of Civil Government, §6] [emphasis in original]

But more than that, our coveted Bill of Rights are the extensions of the entire concept for the limitation of the powers of government, and the empowerment of the individual. "The whole of the Bill is a declaration of the right of the people at large or considered as individuals…It establishes some rights of the individual as unalienable and which consequently, no majority has the right to deprive them of." –Albert Gallatin, 1789, New York Historical Society

The original statements of the Founders give us their intent for ratifying the words they used. Why did they say this, and say it that way instead of the other way or another way? But epistemological intension is like a definition of a genus, whereas extension is like the definition of a species. The genus of the Constitution is that of a document never seen before then, one that had two part, the way 'man' is defined as 'rational animal'. The two parts are to be an enabler of individualism, and a limiter of government.

Madison warned us of wrongful extensions of the limited powers given to government, and named many that we see today. Congress might, he said, "establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress [ ] and might be called, if Congress pleased, provisions for the general welfare."

These things are so commonplace that we do not even think about some of them as being usurpations by the nation upon the powers of the States; or worse, usurpations on your individual sovereignty, which was a commonly held extension of the purpose of the limitation on government.

Next Friday I will examine some others in detail.

© Curtis Edward Clark 2012

A Proposed Amendment to the Constitution

 

Limited Powers Amendment to

The Constitution of 

the United States of America

"The government of the United States nor the governments of the several States have, nor shall be allowed, power not enumerated to them or power denied to them by the Constitution or by any of its Amendments."

Discussion: Does this proposed Amendment adequately treat of the problem of encroachment by the Federal government on the right of the States; and does it adequately treat of the problem of encroachment on the rights of individuals by the States?

© Curtis Edward Clark 2011

Original Meaning of Ninth Amendment Is Lost in Modern Jurisprudence

     The Ninth Amendment is the Constitutional description of "individual sovereignty".
     "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
     Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
     As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them." 
     "Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
     Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
     Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]

     As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
     And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
     But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
     And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.


[1]  http://www.mastermason.com/rfire/masonry/waterblot.html
[2]  http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3]  http://joseph%20j.%20ellis/
[4]  http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5]  http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6]  http://static.record-eagle.com/edits/know_your_rights/26ninth.htm 
[7]  http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2

*Robert Bork called it an "'inkblot' on the Constitution."

© Curtis Edward Clark 2011
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The Ninth Amendment, Liberals, and Conservatives

     On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
     Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
     That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
     Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
     "The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
     In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
    OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
    If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
     But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
     What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
     Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
     Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
     That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
     The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
     And that is all that the Ninth Amendment states; and it should read more like this:

"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."

 *1 2 3 4


© Curtis Edward Clark 2011
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What is Allegiance to the "United States"

     Allegiance to the government of the United States is not the same as allegiance to the State of which one is a legal resident. Article XIV, adopted in 1868, states that everyone who is born a citizen or is naturalized and who is subject to the jurisdiction of United States "are citizens of the United States."

     "The citizen was not, under the theory of States' rights, in contact with the National Government. He owed allegiance to his State, and the State dealt with the Nation. That theory was definitely set aside by [the Fourteenth] Amendment." *

     Americans now owed allegiance to both authorities. Congressman John Bingham was the principal author of Section One of the Fourteenth Amendment, the part with the words "citizen of the United States". "The phrase 'citizen of the United States' had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories." Original Intent.org 

"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." John C. Calhoun

     We unintentionally created what would become a behemoth national government, and it was entirely within the purview of the original Constitution because we had amended the original Constitution. But did creating 'national powers' within the 'federal' government automatically give it the broad powers it has today, with hundreds of federal agencies allowed to make law, and the President allowed to make legally binding executive orders, when the first sentence in the Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"?
     Federal powers began to expand, says Doug Fiedor, in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice." In that case, Chief Justice Marshall therefore denied that the delegation [of those powers] was impermissible," and "In 1940, that power was even written into law."
     In future blogs, I will continue to explain how federal expansionism became unlawfully practiced.
     For now it is enough to say that when I pledge allegiance to the United States, it is not the nation that James Madison and the other signers of the Constitution conceived, nor the same federal government that Calhoun described. It is a nation in which both parties conceive of positive rights as an extension of their Fourteenth Amendment duty to protect (and further define) the 'citizen of the United States'. 
     The defining of such a citizen' should have been severely limited, by by then it was too late to stop the national train.

* All asterisks in this post refer to my favorite pre-WWII reference on the Constitution: Constitution of the United States; Its Sources and Application; Thomas J. Norton, copyright 1943

Big Government and the Ninth Amendment

   The Tea Party lacks for a lot of things. Number 1 is the intellectual basis for arguing why government should be smaller. "Government should be smaller!" the T-Partiers chant, but their argument is that we can not afford it any longer, as if to say, "If we had all the money in the world, we'd be ok with 'big' government".
   Big government ought to be big, if the big problems of the big world call for it. There is nothing wrong with big government so long as it is Constitutionally doing what it ought to be doing, not doing what it ought not be doing, and that what it does that it 'ought to' can be paid for.
   Therein lies the problem. More than 100 years of Progressivism have given rise to the idea of "positive liberty", e.g., entitlements. These are not simply things like food stamps and health care, but also government mandates on hair dryers--which save about 12 lives a year at a cost of hundreds of millions of dollars; the mandated demise of the incandescent light bulb so that America doesn't have to build any new nuclear reactors--which are very safe and extremely cheap when the they are allowed to be pebble bed modular reactors; but nooooo, those are not allowed, even while the start-up of such companies as could build them would instantly put tens of thousands of people to work.
   Government mandates are costing the people of this nation hundreds of billions of dollars a year in subsidies, including those for bio-fuels, which as we all know by now are pushing up the cost of fuels, the cost of our food, and are not popular, not to mention that the price of biogas must be something like 24¢ less than regular before it actually becomes more fuel-efficient, because you get fewer miles-per-gallon with it.

   Negative liberty, on the other hand, is the absence of political obstacles and constraints against individual sovereignty, which the Founders sought to guarantee with the Ninth Amendment.

   The Ninth Amendment says that just because the Founders failed to name and to number all the specific rights you have, doesn't mean you don't still have them. The right to a hairdryer that won't kill you if you are stupid enough to use it near water isn't one of them.
   The Tea Party has turned out to be a very vocal group of fiscal and ethical conservatives, which could be good for America's wallets and America's disdain for corrupt politicians, who until now have mostly gotten away with their indiscretions.
   But the Tea Partiers are no more Originalist readers of the Declaration than are their Republican or Democratic counterparts, and therein lies the problem: we need Constitutional Originalists to separate the unConstitutional government from the Constitutional government, not the "big" from the "small" government, because in the end those who call for smaller, or for less, government still fail to remember the reason that a government that governs less governs best: isn't because it's fiscally smaller, it because it is further toward being unable to destroy what is so callously forgotten about the Ninth Amendment.

Overcoming the "Overcoming of Originalism"

In my original post of this blog I wrote: "Taken as a 'living document' progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A 'living document' needs no Amendments. It can be twisted to meet the needs of whatever political party has power."

This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence." 


What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.


But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.


But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law? 


For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.


The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.


If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths. 


Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.

© 2010 FAMN LLC (MI)

What is "Individual Sovereignty"?

A couple of times I have been verbally assaulted in emails by people who claimed that only nations had "sovereignty". Apparently they have never heard of "popular sovereignty", a concept dating back to the middle of the 17th century, formulated as part of social contracts. "Popular" sovereignty is no more of a nation than "individual" sovereignty is.

John Locke, as Hobbes before him, claimed that social contracts were unbreakable. He stipulated however that if the legislatures did not work for the good of the citizens, they could replace the legislature.

"Popular sovereignty," therefore, becomes "the notion that no law or rule is legitimate unless it rests directly or indirectly on the consent of the individuals concerned."
http://www.basiclaw.net/Principles/Popular%20sovereignty.htm

Thomas Jefferson and others wondered how individuals could consent to give to a social contract powers they themselves did not have to begin with. We cannot give bread to a food bank if we don't have bread; how can we give consent to others to make rules for us if we don't have the original power to make rules for ourselves? They therefore concluded that individuals did, indeed, have such natural rights that only individual sovereignty could morally defend.

""Natural rights [are] the objects for the protection of which society is formed and municipal laws established." -Thomas Jefferson, letter to James Monroe, 1791

But, "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." Joseph J. Ellis

"And thus, [ascertained to him by natural and eternal equity,] every man is sole lord and arbiter of his own private actions and property--a character of which no man living can divest him but by usurpation, or his own consent. -John Trenchard, January 20,1721 The Freeman 

"The relationships between federalist political structure and the sovereignty of the individual must be carefully examined..." James M. Buchanan

In contrast to the Articles of Confederation, in which the sovereignty of the States, not all of which followed the rule of "natural rights", formed the United States, it was the sovereign people who created the United States under the Constitution. And the people were sovereign in their individual, not collective, capacities. The Ninth and Tenth Amendments saw to that.

"Legislation for communities, as contradistinguished from individuals," Hamilton wrote with Madison in Federalist No. 20, "is subversive of the order and ends of civil polity."

It even comes to us from the Czeck Republic's first President, Václav Havel: ""The sovereignty of the community, the region, the nation, the state--any higher sovereignty, in fact--makes sense only if it is derived from the one genuine sovereignty, that is, from human sovereignty, which finds its political expression in civic sovereignty." Cato Journal

Elizabeth Price Foley, wrote that the U.S. was created on two “foundational principles”, limited government and individual sovereignty.

No individual can willingly give to the "common sovereignty" what he himself does not already possess. This brings many questions to mind concerning taxation, the use of military and police force, etc. But those belong in another debate, and they can be rectified where they are wrong, to respect common or popular sovereignty, and often individual sovereignty.

© FAMN LLC (MI)

The Mount Vernon Statement

On February 17, 2010, a number of well-known and influential people met at President Washington's home, Mount Vernon, to sign The Mount Vernon Statement, billed as Constitutional Conservatism: A Statement for the 21st Century.

Liberal groups, said the Vancouver Sun, dismissed the Mount Vernon Statement as a rehash of right-wing ideas better suited to the 18th century than the 21st.

"The Mount Vernon Statement," reported the Sun, "appears to be yet another recitation of the same tired dogma we've seen for decades," said Michael Keegan, president of People For the American Way.

No explanation was given for why the U.S. Constitution is "better suited to the 18th century than the 21st". But it appears clear that the signers have comitted themselves to one error. Throughout the Statement they refer to the Constitution as a "conservative" document.

"At this important time, we need a restatement of Constitutional conservatism grounded in the priceless principle of ordered liberty articulated in the Declaration of Independence and the Constitution," reads the Statement. "The conservatism of the Constitution limits government’s powers...A Constitutional conservatism unites all conservatives...It reminds economic conservatives [and] social conservatives [and] national security conservatives [that] Constitutional conservatism based on first principles provides the framework for a consistent and meaningful policy agenda."

The error is in the attempt to label and to categorize the U.S. Constitution as a conservative document. It was not a conservative document in 1787. It was not debated nor established in a conservative atmosphere.
A "radical act occurred when 55 representatives of the 13 colonies gathered to improve on the Articles of Confederation and instead locked the doors, posted sentries, and proceeded to discuss, debate, and develop the most unprecedented document ever created as a blueprint for governing a nation.

"This radical document we know today as The Constitution for the United States of America. Never before in the history of mankind had such an approach been suggested, and then ratified....This was truly revolutionary, radical, bold in vision, and bolder in application." Gary Wood

So, "why does the New York Times label Ron Paul as the most radical congressman in America for calling for a return back to our constitutionalist ideals?" Through the Magnifying Glass

Because the American people have no idea what freedoms they would once again own as individual, sovereign entities under Federalist principles governed by the ideal of a republic. To roll back the clock to such a moment when men were again "Citizens of their several States" instead of "citizens of the United States" under the 14th Amendment; to go back to a time when the Interstate Commerce Clause did not give the Federal government the power to control nearly every aspect of industry and commerce, would be radical in and of itself. It would require legislators in every State and in Congress who understood Originalism. It might require a Constitutional Convention, because to right some wrongs would require Amendments. We cannot simply "go back" without unintended consequences. Laws that put legitimate criminals in prisons are sometimes not legitimately "laws" according to Originalist interpretations of the Constitution, and yet we cannot let dangerous people out of prison.

President GeorgeW. Bush was not the first to declare certain captured enemy soldiers by the title of "enemy combatants"; Lincoln did so during the Civil War, and there are those who would perhaps be correct to say that both Presidents were wrong to do so. Yet there are men detained at Gitmo who would kill another 3000 Americans (or Spaniards or Malays or French or British or Germans) if they were released.

The Constitution is not the "conservative" document the Republicans would like us to believe. It is more important than that, more primary, more principled, more limited than most Conservatives would want to see.

We got into this messy situation of ignoring and going around the Constitution because Republicans as much as Democrats and Progressives wanted the power to control the forces of law.

We don't need "conservatives", Tea Party or otherwise, controlling our nation. We need the radicals who will state without equivocation, "I swear to abide by the Constitution as it was given to us, not as I would have it through subversion."

© FAMN LLC (MI)

Tea Parties vs. Originalism

Tea Party language calls for "smaller government". Smaller government means nothing, because theoretically it could still include Medicare, Social Security, income taxes, death taxes, and other forms of government power over the individual that was never "originally intended."

Indeed, if the Founders had known then what they could not have known without omniscience, they would have crafted a Constitution that would not allow for the idea of a "living document."

Taken as a "living document" progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A "living document" needs no Amendments. It can be twisted to meet the needs of whatever political party has power.

"Originalism is the view that the Constitution has a fixed and knowable meaning established at the time of its enactment." U. of San Diego School of Law The Tenth Amendment tells us that the powers not delegated to the United States nor prohibited to the States themselves are either reserved to the States, or to the people. In theory this means each individual ought to have the freedom to do whatever he or she pleases so long as it does not abrogate the sovereignty of any other individual within the definition of such sovereignty. 

Unfortunately, there is little in the Ten Amendments to guarantee such sovereignty.

"Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." wrote Joseph J. Ellis.

The separation of church and state came to be part of our law, not by being written in the Constitution, but by being a part of the national debate during the writing of the Constitution, by being accepted as a "common assumption of the day."

This is Originalism and that is how it operates; the Jurist behind the bench reaches back into the history of our Founding, discovers what the Founders wanted even if they failed as men to include it in the Constitution, and then he incorporates that Original thinking into his decision.

We cannot blame the Founders for their lack of omniscience. We must look to what their intentions were and accept them as the guiding principle behind the document being judged.

If the decision of the Jurist does not match the needs of the people or of society as it exists today, it is then up to our Legislative branches to write the laws that will meet our needs--but those laws must also meet the Original Intent of the Founders, or we must create an Amendment to meet the current need. 

© FAMN LLC (MI)