Monday, September 9, 2019

Justice Gorsuch and Original Intent

[u.] S. Supreme Court Justice Neil Gorsuch made a revealing statement about the Constitution recently:

Gorsuch addressed the 'living Constitution' and clarified that having a dynamic meaning or a sense that the Constitution changes with time is illogical.

"You know, the living Constitution is going to take your rights away and it's going to add ones that aren't there - we have a written Constitution. It's about honoring the words the people chose to adopt. What are the first three words of the Constitution? It's 'We the people,' not 'We the states,' not 'We the nine old judges,'" he added.

It would seem Justice Gorsuch subscribes to the revisionist view of the Constitution, for the phrase ‘We the people’ never meant the whole undifferentiated mass of citizens of all the States:

Colonel Henry Lee took the same point of view in responding to Patrick Henry. Light Horse Harry spoke as other proponents of the Constitution did, in irritation and perplexity. He could not comprehend why Henry’s question should even be asked. Obviously, the “we the people” mentioned in the preamble—the “we the people” there and then engaged in ratifying the Constitution—were we “the people of Virginia.” If the people of Virginia “do not adopt it, it will always be null and void as to us.”(23)

Here Lee touched and tossed aside what doubtless was so clear to others that they could not understand what Henry was quibbling about. Of course, “we the people” meant what Madison and Lee found so obvious: It meant “we the people of the States.” Why argue the point? “I take this,” said Randolph testily, “to be one of the least and most trivial objections that will be made to the Constitution.”(24)

The self-evident fact, as plain as the buttons on their coats, was that the whole people, the mass of people from Georgia to New Hampshire, obviously had nothing to do with the ratification of the Constitution. The basic charter of our Union never was submitted to popular referendum, taken simultaneously among the 3,000,000 inhabitants of the country on some Tuesday in 1788. Ratification was achieved by the people of the States, acting in their sovereign capacity not as “Americans,” for there is no “State of America,” but in their sovereign capacity as citizens of the States of Massachusetts, New York, Virginia, and Georgia.

This was the sovereign power that sired the new Union, breathed upon it, gave it life—the power of the people of the States, acting as States, binding themselves as States, seeking to form a more perfect union not of people but of States. And if it be inquired, as a matter of drafting, why the preamble of the Articles of Confederation spelled out thirteen States and the preamble of the Constitution referred only to “we the people,” a simple, uncomplicated explanation may be advanced: The framers of the Constitution, in the Summer of 1787, had no way of knowing how many States would assent to the compact.

Suppose they had begun the preamble, as they thought of doing, “We the people of New Hampshire, Massachusetts Bay, Rhode Island,” etc., and the State of Rhode Island had refused to ratify?

It very nearly did. It was not until May 29, 1790, by a vote of 34-32, that Rhode Island agreed to join a union that actually had been created with New Hampshire’s ratification nearly two full years before. Given a switch of two votes, Rhode Island might have remained, to this day, as foreign to the United States (in terms of international law) as any Luxembourg or Switzerland.

Some of these forebodings clearly passed through the minds of the delegates at Philadelphia. When the preamble first appears in the notes, on August 6, it reads: “We the people of the States of New Hampshire, Massachusetts,” etc., “do ordain, declare and establish the following Constitution.” In that form it was tentatively approved on August 7. But the preamble, in that form, never is mentioned again. When the document came back from the Committee on Style in early September, the preamble had been amended to eliminate the spelled-out names of States, and to make it read simply that “we the people” ordain and establish. The change was not haggled over. No significance was attached to it. Why arouse antagonism in New York or North Carolina (where there was opposition enough already) by presuming to speak, in the preamble, as if it were unnecessary for New York or North Carolina even to debate the matter? The tactful and prudent thing was to name no States. Only the people-as-States could create the Union; only the people in ratifying States would be bound, as States, by its provisions.

It is not a good sign when one of the supposedly best and brightest ‘conservatives’ on the [u.] S. Supreme Court gets something as basic as the meaning of ‘We the people’ so fundamentally wrong.  It is time to try some other avenues to protect your beliefs and traditions, Southron, than relying on the Supreme Court in Washington City.


Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!

Anathema to the Union!

No comments:

Post a Comment