Thursday, November 19, 2009

On Original Intent

On Original Intent

            Their lately has been an out cry for original intent in interpretation of the U.S Constitution.  We should return to the U.S, Constitution as established by the Founding Fathers.  The problem you have is who original intent do you return to, the limited self government of Thomas Jefferson. Jefferson believed the U.S. Government should be a collection of 13 loosely joined agrarian republics’, yet it was Jefferson that purchased the Louisiana Territory from the French.  Alexander Hamilton believed that the Secretary of the Treasury should serve as a sort of Prime Minister in the tradition of the British Cabinet (like the British Chancellor of the Exchequer).   Do you remove The Bill of Rights? The framing members to the Constitutional Convention had not felt it necessary to include a Bill of Rights in the framing document. The Bill of Rights was added as a series of amendments to increase the likely hood that the Constitution would pass. The Tenth Amendment, which is the one most of the limited government proponents point to, was not a part of the Constitution from the framing.  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 single greatest power given by U.S. Supreme Court, the power of Checks and Balances, whereby any two division of government have a check over the other two was a creation of our second Chief Justice of the Supreme Court John Marshall.  He created the power out of whole cloth in the case Marbury v. Madison[1].  The power can not be found in the framing document, its text or any of the amendments to the Constitution.  George Washington was the father of our country but John Marshall was our nanny.

            If limited self government is the model then Dred Scott[2] was a good decision.  Before the Civil War the Bill of Rights only applied to the Federal Government and not to the States.  States were legally permitted to discriminate against their citizens, limited in their powers only by their state constitutions.  Do we really want to return to a government where the President of the United States could rightfully say to Joseph Smith, “Gentleman, your cause is just but I can do nothing for you..”

[1] (see