| How can these Constitutional Experts support the | | | | upon gender?" |
| unconstitutional War on Drugs (remember, Prohibition? | | | | Incidently, Utah was the second territory in the U.S. to |
| You need a Constitutional Amendment to make | | | | grant women suffrage in 1870, under the impression |
| prohibition the law of the land and last I checked, we | | | | that, if given the right to vote, that Utah women would |
| never ratified an Amendment to prohibit drugs). As the | | | | vote to make polygamy illegal. However, in 1887 the |
| march toward November 2nd, 2010 continues, it really | | | | women of Utah were disenfranchised by the United |
| turns my stomach to see more and more political | | | | States Congress under the Edmunds—Tucker |
| rhetoric where candidates are now claiming to be | | | | Act when Utah women exercised their right to votes |
| MORE "constitutional" than their opponent. For | | | | in favor of polygamy. Women's suffrage in Utah was |
| example, during the primaries in Utah's U.S. Senate | | | | restored a few years later when Utah's constitution |
| race, both candidates Mike Lee and Tim Bridgewater | | | | restored woman's right to vote since the original U.S |
| laid claim to the Constitution as their guide. Please | | | | Constitution didn't offer this right until the passage of |
| explain how EITHER of these guys call themselves | | | | the 19th Amendment). |
| fans of the Constitution yet oppose birthright | | | | In the sense that there are two main political parties in |
| citizenship? | | | | the United States, broadly speaking, there are two |
| And where in the Constitution does it talk about Social | | | | main types of "Constitutionalists"; those that subscribe |
| Security? But constitutional "expert" Mike Lee offers | | | | to "Originalism" and those that believe in a "Living |
| the unconstitutional solution of simply raising the | | | | Constitution". The funny thing is that there has been a |
| retirement age but isn't that a bit like re-arranging the | | | | term being thrown around, "strict Constitutionalist", that I |
| deck chairs on the Titanic? You don't have to tweak | | | | believe means being an "Originalist" with regards to |
| already doomed institutions. For example, as an | | | | interpreting the Constitution. The term "strict |
| entrepreneur, I helped to found the leading consulting | | | | constitutionalist" is likely a mutation of the term "strict |
| firm in the Reverse Mortgage space to help create | | | | constructionist", a term with too many interpretations to |
| market-based solutions to the problem of senior | | | | digress into for the purposes of this essay. |
| funding. | | | | Supreme Court Justice Stephen Breyer would fall into |
| How can these Constitutional Experts support the | | | | the Living Constitution camp while Justice Antonin |
| unconstitutional War on Drugs (remember, Prohibition? | | | | Scalia would be considered an Originalist. Living |
| You need a Constitutional Amendment to make | | | | Constitution folks hold that the Constitution's boundaries |
| prohibition the law of the land and last I checked, we | | | | are plastic and should serve the needs of society as it |
| never ratified an Amendment to prohibit drugs). | | | | evolves. This means that the Constitution's meaning |
| And interesting Constitutional aside for Utahns, the | | | | can shift to include both of Isiah Berlin's concepts of |
| Twenty-first Amendment, which ended prohibition, was | | | | negative and positive liberty. "Living Constitution" judges |
| ratified when Utah became the state to cast the | | | | are often perjoratively called "Activist judges" by their |
| deciding 36th vote to ratify the Twenty-first | | | | opposition. Ultimately the Living Document interpretation |
| Amendment on December 5, 1933. Utah's subsequent | | | | of the Constitution whither when it is understood that |
| infamous and unusual liquor laws were a direct result | | | | "If the constitution can mean anything, then the |
| of its decisive vote to end the government enforced | | | | constitution means nothing". |
| prohibition of alcohol. | | | | Originalist judges try try to interpret the Constitution as |
| Recently, a headline at the satirical Onion website read: | | | | the Founders would have. As Justice Scalia said in a |
| Area Man Passionate Defender Of What He Imagines | | | | recent 60 Minutes interview: |
| Constitution To Be. I call these types "A La Carte | | | | "...it isn't the mindset. It's what did the words mean |
| Constitutionalists". You know the type, they pick and | | | | to the people who ratified the Bill of Rights or who |
| choose the parts of the Constitution they like and | | | | ratified the Constitution," |
| disregard the rest. Their piecemeal approach may be | | | | This is tantamount to saying that he and other |
| truly deceitful or merely done for expediency's sake | | | | "Originalist" have some sort of postcognitive psychic |
| (e.g., being a "constitutionalist" makes a great | | | | ability to channel the Founding Fathers and somehow |
| sound-byte) but either way it is wrong. | | | | know what they meant (maybe they all wear |
| "[i]t is true that, in the United States, at least, we | | | | bracelets that read "WWFFD"). Understanding the |
| have a constitution that imposes strict limits on some | | | | meaning of words across time is a difficult enough |
| powers of government. But, as we have discovered in | | | | task for trained etymologists and historians but I think it |
| the past century, no constitution can interpret or | | | | is fair to say that it is really impossible to know how |
| enforce itself; it must be interpreted by men. And if the | | | | the Founders would think about technology like |
| ultimate power to interpret a constitution is given to the | | | | stem-cell research, nuclear missiles, or the internet until |
| government’s own Supreme Court, then the | | | | someone invents a time-machine. I mean how does |
| inevitable tendency is for the Court to continue to | | | | one really determine if someone knows better than |
| place its imprimatur on ever-broader powers for its | | | | other what the words of the Founders mean in |
| own government. Furthermore, the highly touted | | | | situations that the Founders could have never |
| checks and balances and separation of | | | | imagined? |
| powers in the American government are flimsy | | | | The other logical flaw with Originalism is the fact that |
| indeed, since in the final analysis all of these divisions | | | | the Ninth Amendment does establish a rule of |
| are part of the same government and are governed | | | | constitutional interpretation since it clearly protects |
| by the same set of rulers." - Murray Rothbard | | | | those rights which the founders had not thought to list |
| While I do think a move back toward our Constitution | | | | explicitly: |
| and toward truly limited-government of the Founding | | | | "The enumeration in the Constitution, of certain |
| Fathers is an important goal, I don't like to call myself a | | | | rights shall not be construed to deny or disparage |
| "constitutionalist" because it really isn't a very clear | | | | others retained by the people." |
| term. I mean, Barack Obama is a Constitutional Scholar | | | | Terms have meaning (which ultimately ends up how |
| too but we couldn't be further apart with regards to | | | | they are used in language). The problem is that the |
| policy. Now while I favor constitutional government | | | | language of politics is sometimes sloppy and applied |
| there are things about the U.S. Constitution that I don't | | | | with very little intension. This allows words like "Liberal" |
| like, for example the 16th Amendment. Often when I | | | | to be changed to eventually mean their exact |
| suggest to self-described Constitutionalists that they | | | | opposite. Unfortunately, the term liberal is now largely |
| must then favor the institution of the IRS they often | | | | synonymous with 'progressive' and when Hayek calls |
| counter by saying with a smug smile, "No, I favor the | | | | himself a classical liberal, not a conservative, too few |
| original Constitution". | | | | people understand the true meaning he wanted to |
| My response then usually sounds something like: | | | | convey. Likewise, "conservative" now is generally used |
| "oh so you support the 3/5th Clause which | | | | to convey neo-conservative policies, not |
| effectively says that each slave is equivalent to 3/5th | | | | paleo-conservative ones. So now, through misuse of |
| of a free man when apportioning how many | | | | terms the people are offered a Morton's Fork of big |
| Representatives each state received (also in the | | | | government Social Democrats and big government |
| Electoral College)?"or | | | | Conservative Republicans. |
| "oh so you don't support the right of women to | | | | Kind regards, |
| vote and feel that the 19th Amendment which prohibits | | | | Jake Shannon |
| the state from denying people the right to vote based | | | | Libertarian for U.S. |