My New Book: The Founding Fathers Guide to the Constitution

[Frobby]

So, it is your view that the people of the United States would be better off today if powers between the federal and state governments were allocated as you believe the Framers intended?

Yes, I think so.

Well, I don't think so, but that's a discussion for another day. I certainly agree with the idea that we have a written Constitution and we aren't free to pass federal laws merely because we think they are good policy, if the Constitution doesn't allow it.

[waroriole]

Yes, I think so.

I'm guessing you're a big states rights guy Brion. Do you also disagree with the Civil Rights Act? It uses the ICC as a means of being constitutional. If opposed, do you think we're better off as a society without that piece of legislation?

[Lucky Jim]

And now we're getting to where I predicted.

[Can_of_corn]

And now we're getting to where I predicted.

It took longer then I thought it would.

[Frobby]

I'm guessing you're a big states rights guy Brion. Do you also disagree with the Civil Rights Act? It uses the ICC as a means of being constitutional. If opposed, do you think we're better off as a society without that piece of legislation?

I think one needs to be careful not to confuse thinking a piece of legislation is good policy with thinking it is constitutional. I happen to think the Civil Rights Act is constitutional, but that's a separate inquiry from whether I think it's a good law.

[waroriole]

I think one needs to be careful not to confuse thinking a piece of legislation is good policy with thinking it is constitutional. I happen to think the Civil Rights Act is constitutional, but that's a separate inquiry from whether I think it's a good law.

I agree, but you asked him if we're better off as a society that would have limited federal lawmaking powers and wouldn't have been able to pass the CRA constitutionally and he said yes. Now you didn't word it that way, so I just wanted to get his take on whether there is a distinction to be made.

[Brion McClanahan]

I agree, but you asked him if we're better off as a society that would have limited federal lawmaking powers and wouldn't have been able to pass the CRA constitutionally and he said yes. Now you didn't word it that way, so I just wanted to get his take on whether there is a distinction to be made.

Frobby didn't ask me about the Civil Rights Act of 1964, you did. He asked if we would be better off with the Constitution as ratified in 1787 and 1788 and I said yes.

So with that said, let's flip this on its head. I assume you are a lawyer, so tell me, is the Civil Rights Act of 1964 constitutional? Now, you cannot use case law, court precedent, or anything of that nature. I want you to find the specific language from the Constitution and a defense of your position from the ratification debates, Philadelphia Convention, letters, pamphlets, speeches, etc from the period during ratification. That is the most important period in the process because the way the Constitution was sold to the States is the way everyone in the founding generation thought it would be interpreted. If not, it would not have been ratified.

Once you do that, and if you can't find anything, then answer this question: if we are to throw aside the Constitution at will whenever we think it is necessary to do so for any reason, then why have a Constitution? And if this is the case, what is to stop the government from becoming (if it is not already) a government of men rather than a government of laws?

[Lucky Jim]

Frobby didn't ask me about the Civil Rights Act of 1964, you did. He asked if we would be better off with the Constitution as ratified in 1787 and 1788 and I said yes.

So with that said, let's flip this on its head. I assume you are a lawyer, so tell me, is the Civil Rights Act of 1964 constitutional? Now, you cannot use case law, court precedent, or anything of that nature. I want you to find the specific language from the Constitution and a defense of your position from the ratification debates, Philadelphia Convention, letters, pamphlets, speeches, etc from the period during ratification. That is the most important period in the process because the way the Constitution was sold to the States is the way everyone in the founding generation thought it would be interpreted. If not, it would not have been ratified.

Once you do that, and if you can't find anything, then answer this question: if we are to throw aside the Constitution at will whenever we think it is necessary to do so for any reason, then why have a Constitution? And if this is the case, what is to stop the government from becoming (if it is not already) a government of men rather than a government of laws?

Most of us don't take a theocratic view toward the Framers or the Constitution, nor do we believe that we owe endless fealty to a paper document produced by individuals with incomplete information about the future - in other words, as good as the concepts are, and they are good, we prefer to stay amenable and adaptable. This "head-flipping" is irrelevant. He asked you a simple question. You should answer it.

[Frobby]

Frobby didn't ask me about the Civil Rights Act of 1964, you did. He asked if we would be better off with the Constitution as ratified in 1787 and 1788 and I said yes.

So with that said, let's flip this on its head. I assume you are a lawyer, so tell me, is the Civil Rights Act of 1964 constitutional? Now, you cannot use case law, court precedent, or anything of that nature. I want you to find the specific language from the Constitution and a defense of your position from the ratification debates, Philadelphia Convention, letters, pamphlets, speeches, etc from the period during ratification. That is the most important period in the process because the way the Constitution was sold to the States is the way everyone in the founding generation thought it would be interpreted. If not, it would not have been ratified.

Once you do that, and if you can't find anything, then answer this question: if we are to throw aside the Constitution at will whenever we think it is necessary to do so for any reason, then why have a Constitution? And if this is the case, what is to stop the government from becoming (if it is not already) a government of men rather than a government of laws?

Actually, I asked a slightly different question:

So, it is your view that the people of the United States would be better off today if powers between the federal and state governments were allocated as you believe the Framers intended?

Since I haven't read your book, I am not either agreeing or disagreeing with your evidence of what the Framers intended. That's why I couched my question in terms of "as you believe the Framers intended."

I am curious, what use did you make of The Federalist Papers in your book? Do you view them as good evidence of what the Framers intended, or not?

[weams]

Actually, I asked a slightly different question:



Since I haven't read your book, I am not either agreeing or disagreeing with your evidence of what the Framers intended. That's why I couched my question in terms of "as you believe the Framers intended."

I am curious, what use did you make of The Federalist Papers in your book? Do you view them as good evidence of what the Framers intended, or not?

All simplistic arguments are at their essence, simplistic.

[Brion McClanahan]

Most of us don't take a theocratic view toward the Framers or the Constitution, nor do we believe that we owe endless fealty to a paper document produced by individuals with incomplete information about the future - in other words, as good as the concepts are, and they are good, we prefer to stay amenable and adaptable. This "head-flipping" is irrelevant. He asked you a simple question. You should answer it.

Calling my view "theocratic" is absurd and frankly stupid. We have a Constitution. It should be followed as it was intended and sold to the States. If you do not believe that, and you have admitted you don't, then don't pretend to defend the law. An illegal law is no law. I am fine with "amendable" and "adaptable," but how many times has the Constitution been amended? And, more importantly, if you believe that, and if you want to change the Constitution, then do it legally, not through the court system.

Have you ever read any of the ratification debates, what Madison said gave "life" to the Constitution? And by the way, John Marshall never cited them in any of his decisions, because he knew they went against everything he was doing on the bench (and would have shown he was both duplicitous and an outright liar).

[Pedro Cerrano]

Frobby didn't ask me about the Civil Rights Act of 1964, you did. He asked if we would be better off with the Constitution as ratified in 1787 and 1788 and I said yes.

So with that said, let's flip this on its head. I assume you are a lawyer, so tell me, is the Civil Rights Act of 1964 constitutional? Now, you cannot use case law, court precedent, or anything of that nature. I want you to find the specific language from the Constitution and a defense of your position from the ratification debates, Philadelphia Convention, letters, pamphlets, speeches, etc from the period during ratification. That is the most important period in the process because the way the Constitution was sold to the States is the way everyone in the founding generation thought it would be interpreted. If not, it would not have been ratified.

Once you do that, and if you can't find anything, then answer this question: if we are to throw aside the Constitution at will whenever we think it is necessary to do so for any reason, then why have a Constitution? And if this is the case, what is to stop the government from becoming (if it is not already) a government of men rather than a government of laws?

Sure it's constitutional and unfortunately I'll have to use case law and precedent to make my argument but that's what the framers intended. If declaring something "constitutional" simply boiled down to finding specific language in the document itself, then the judicial branch would be significantly weaker than the other two. And that is something I'm fairly certain the framers wanted to avoid.

I get that the idea of the Commerce Clause allowing congress to pass laws willy-nilly is unappealing to some, but, IMO, it beats the alternative, which is 9 judges standing around a piece of paper trying to figure out what James Madison specifically intended to allow congress to do when they gave them the power to "regular interstate commerce."

[Lucky Jim]

Calling my view "theocratic" is absurd and frankly stupid. We have a Constitution. It should be followed as it was intended and sold to the States. If you do not believe that, and you have admitted you don't, then don't pretend to defend the law. An illegal law is no law. I am fine with "amendable" and "adaptable," but how many times has the Constitution been amended? And, more importantly, if you believe that, and if you want to change the Constitution, then do it legally, not through the court system.

Have you ever read any of the ratification debates, what Madison said gave "life" to the Constitution? And by the way, John Marshall never cited them in any of his decisions, because he knew they went against everything he was doing on the bench (and would have shown he was both duplicitous and an outright liar).

It was a metaphor. But I get how your literalism may blind you to the use of metaphor.

But, given the bolded, shockingly accurate.

Also, wrote "amenable." Big difference.

[Lucky Jim]

The main issues as I see them:

1. How do we separate meaning from intent? And thus how do we avoid the intentional fallacy?
2. How does this interpretation avoid the scathing indictment of the judicial use of legislative history as voiced by conservative scholars like Adrian Vermeule?
3. As a subset, how does this account for the fact that the rhetoric of ratification was likely pragmatic itself - that, in essence, any ratified document is to some extent an incomplete theorization?
4. Do we believe that the Framers - who were schooled in Classical and European philosphy, and thus well aware of the limits of language, its flux and its flaws - thought that their meanings would be static and permanent over time?
5. Do we believe that the Framers had an interest in keeping the Constitution static over time?
6. Do we believe that the ratifying parties had an interest in keeping the Constitution static over time?
7. One more: what do we do about the fact that 36 states joined the union after Marbury?* I.e., they joined a Union that already deviated from "original" intent?



*I.e., or any of a number of opinions that constitute the slow march away from original meaning/intent. In other words, why would late-joining states be bound by some law other than the law to which they agreed to join?

[Brion McClanahan]

Sure it's constitutional and unfortunately I'll have to use case law and precedent to make my argument but that's what the framers intended.

Your evidence? (I have plenty in my book that points to the opposite, and I read every page of the Philadelphia Convention and the State ratification conventions as well as almost all 27 volumes of the Documentary History of the Ratification of the Constitution, so I think I know a little about this).

If declaring something "constitutional" simply boiled down to finding specific language in the document itself, then the judicial branch would be significantly weaker than the other two. And that is something I'm fairly certain the framers wanted to avoid.

Again, your evidence? I refer to my first point. The judicial branch was intended to be the weakest branch of government.

I get that the idea of the Commerce Clause allowing congress to pass laws willy-nilly is unappealing to some, but, IMO, it beats the alternative, which is 9 judges standing around a piece of paper trying to figure out what James Madison specifically intended to allow congress to do when they gave them the power to "regular interstate commerce."

"Jemmy" Madison was but one of the framers and one of the ratifiers, but the documents pertaining to the ratification are there and have been there for over a century. The congress used to debate about the constitutionality of a law before they passed it. Now, they simply pass the buck to the judicial branch and forgo their constitutional responsibility of ensuring that legislation is constitutional before it leaves that branch. And again, only a fraction of the founding generation believed in so-called judicial review, as I point out in my book.

Before you make statements about what the "framers" intended, you might want to crosscheck that opinion.