Casey’s central argument against what he views as our misreading of the Constitution, betrays both his ignorance of the history surronding the Constitution and the rules of legal interpretation that were understood very well by the those who framed and ratified it.
Both James Madison (the author of the amendment Casey uses to make his case), and Alexander Hamilton, had serious reservations about a Bill of Rights. Why? Because they argued what Tenthers today understand — that the Constitution created a federal government of strictly limited powers. That’s the reason pro-ratification founders, like Hamilton, expressed concern that the Bill of Rights:
“..would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted (Italics mine).”
Perhaps Casey has never read the Federalist Papers or studied the ratification debates. Hamilton however, who along with James Madison and John Jay wrote the Federalist Papers, asked an important question in No. 84 that shows just how confused Casey really is. He asked:
“..why declare that things shall not be done [by Congress] which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [to Congress] by which restrictions may be imposed?”
Hamilton might have just as well have asked, “Why have an amendment prohibiting Congress from infringing on our right to grow and eat apples when the Constitution gives Congress no authority to infringe upon our right to grow and eat apples in the first place?” He knew full well that under the proposed Constitution, Congress was supposed to do only what it was specifically authorized to do and nothing more. All other powers were to be reserved to the states or to the people. The 10th Amendment is perfectly clear on that point.
But as one can see from Hamilton’s questions in Federalist No. 84, there isn’t even really a need to appeal to the 10th Amendment in order to refute Casey’s pathetic argument. Casey should have done his homework before attempting to impersonate a constitutional scholar and insult Tenthers by calling them all kinds of names. We know and understand the Constitution far better than he does. Even before the Constitution was ratified, Alexander Hamilton predicted that the Bill of Rights would be misconstrued by people like Casey who are “disposed to usurp” in order to furnish, “a plausible pretense for claiming power” that is nowhere granted to the federal government in the Constitution.
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