Today when you hear the term Constitutional Scholar or Constitutional Expert you get the image of someone who has studied the Constitution and perhaps the Ratification Debates as well as the federalist papers. Someone who has studied the philosophers whose opinions were crucial to how our nation was to be governed like Blackstone, Cicero and Montesquieu and understands the context the Constitution was written in.
You would be wrong, Constitutional Law as it is today is really Case Law and it has very little to do with what the text says and everything to do with reinventing that text to make it say what it needs to say to allow the expansion of the central government through the practice of precedents. This comes from a philosophy called “Legal Realism”, where the law is whatever the Judges say it is.
Our opponents say; How can we expect a document written two hundred years ago by back woods farmers, who rode in horse drawn buggies, to govern our society today? Besides, they owned slaves and did not allow women to vote, is that what you think we should go back to? All of you tea partiers with your pocket constitutions are out of line when you question the Federal Government because original intent is no longer important in Constitutional Case law. Our society has progressed, and our understanding of the Constitution must progress with it. It is a “living” document that must evolve with the times.
But we agree with historian Kevin Gutzman, author of “The Politically Incorrect Guide to the Constitution” who has said those that would give us a “living” constitution are really giving us a dead one, since such a thing is completely unable to protect us from the encroachments of Government power. Furthermore, a Government without “strict” limits is tyranny. Here is a warning from Thomas Jefferson in the Kentucky Resolutions of 1798 talking about the how the powers of the Federal Government were to be defined:
“That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Case Law has set up a system where the final word on the power of the Federal Government is left to the Federal Government. Instead of a Government of “We the People”, we have a central government that tells us how to live because we are not smart enough to do this for ourselves. Has the time come where we start to take back our Country from the political class, and reclaim the ideals of Popular Sovereignty so we can pass that freedom to our Children? I hope so.
cross-posted from the Colorado Tenth Amendment Center