One interpretation of how the Founders and Framers intended the Constitution to be applied

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Introduction. As I have watched the current debate, the conflict between the Democratic Party and the Republican Party — and within the Republicans, between the so-called "establishment" and the newly awakened "Tea Party" arm, I have found myself looking more to the Constitution and the Founders for answers. And I have concluded that the Constitution is simple to interpret — for those who pay attention to what it says.

The Author's Background. Before going further, I want to emphasize that I have no training as a lawyer. All I am is an American citizen, distressed by current events, who wants a return to the principles that our proud country was founded upon. One who holds certain "... truths to be self-evident," if one just looks within the Founding documents and the writings of their authors.

I grew up in rural Kentucky, where lessons in history and civics were flavored by the traditions of our great country. Most adult men hunted in season, both for food and for sport, and used and respected firearms — gun safety was taught in fourth grade; school entertainments included sharpshooters demonstrating their skills in the auditorium, and nobody thought it noteworthy. My family honored America's traditions and our country's founding. My grandfather used the money he earned on a Depression-era work project to found the family business. Both of my uncles served in the military (one Army, one Navy) during World War II, and my father was a career U.S. Army non-com, serving in Korea, Vietnam, and wherever duty called.

As a Southerner, my Democratic Party roots are almost genetic, and among my earliest memories are county Democratic Party fundraisers attended with my parents and grandparents. But Southern Democrats have always been bedrock conservative; we were no different. Some of my family recognizes that the modern Democratic Party has left those principles; other members continue to trump principle with party affiliation, in numbers that undoubtedly make a difference in Presidential elections. With all due respect to the memory of my parents and grandparents, I can no longer support any politician who affiliates with the modern Democratic Party; this does not mean that the Republican Party has won my unswerving loyalty.

I am also a scientist, and a businessman. I value truth and the open exchange of information; but recognize that information has immense value and sometimes needs to be close held. I have little tolerance for misinformation and fraud, particularly on matters related to science and politics. As a Christian, I value the right to worship according to the dictates of my conscience, and respect the rights of all persons of good will to do likewise. But as others do not want me to dictate to them, I do not want them to dictate to me. Any person — or any "faith" — which attempts financial, physical, or judicial coercion, uses the threat of death, or crosses the line into actual murder, to limit anyone's freedom to worship, deserves the same fate as any other criminal, or terrorist, using those tactics.

Why Remove the "Loopholes." This essay reinforces the Bill of Rights of our Constitution as the fundamental social contract between a People and a limited government that is constituted to protect the individual rights of the People. The Constitution cannot ethically be manipulated to serve the political needs of a so-called governing elite, though they frequently try to do so, and too often succeed.

The Bill of Rights draws on the natural rights of life, liberty, and the "pursuit of happiness" named in the Declaration of Independence. It includes and defines the rights of individuals to be protected from indiscriminate power of the U.S. (and in some cases State) government; but imposes no requirements on any person to take any action, nor obligates any person to the support of any other, either by gifts of time or money, or through "redistribution of wealth" by taxes. The Bill of Rights as written — and as taught in schools forty years ago — establishes individual rights to be honored not only by the Federal Government, but in most cases also by the States. A couple of centuries of Constitutional Law appears to disagree with portions of that statement, but the People clearly see things differently.

This conclusion is evident on a clear reading of the Bill of Rights, in light of the then extant Privileges and Immunities Clause. The First Amendment establishes limits on Congress ("Congress shall make no law..."), and thereby on the federal government –– but not on the States. The Second, Third, Fourth, and Fifth Amendments clearly describe certain individual rights ("The right of the people..." repeated twice; "without the consent of the Owner;" "No person shall...") as absolutes; the text cannot be construed to permit the States to violate those rights any more than the Federal government. (For some reason, liberals dislike including the Second Amendment in this list, and have recently evidenced a distaste for property rights at the state and municipal level; but nobody questions "taking the Fifth."). The Sixth and Seventh Amendments provide both individual rights ("the accused shall enjoy..."; "...the right of trial by jury...") and obligations on the States ("...an impartial jury of the State and district where the crime shall have been committed..."). The Eighth Amendment is clearly a protection of the people against the States, since most trials (see the Sixth Amendment and the common law) are in State courts. The Ninth amendment reserves non-enumerated rights to the people — neither to the Congress, nor to the States. The Tenth Amendment reserves the non-enumerated powers to the States and to the People.

Thus, the Bill of Rights clearly establishes three classes of rights and/or powers:

• The enumerated powers, which are the only areas in which Congress has the power to legislate (and, by extension, the President and his officers to enforce or codify by executive order and regulation),
• Powers either expressly required of the States, or reserved to them by the Constitution (including most criminal and civil law, except for treason); and,
• Enumerated individual rights retained by the people, and non-enumerated rights and powers reserved to the people.

This is also implicit in the sovereignty of the People: the State and federal governments are constituted to the service of the people, rather than the reverse.

The Bill of Rights includes absolute statements which grant individual rights; the resulting limitation on powers thus applies equally to the Federal government and to the States. It was and is not necessary to rely on the 14th Amendment to extend these limitations to the States; however, such reliance reaffirms the intent of the Founders, and extends it to the then recently-freed slaves. The Federalist Papers, the original Virginia Declaration of Rights and other of the writings by the Founders and Framers also provide affirmation.

If the Framers (working with Jefferson) were to rewrite the Bill of Rights and Enumerated Powers today, to remove "loopholes" which have been manufactured through the abuses of Federal and State legislators, the Executive branch, and the Courts, the result might look something like this. ^, These statements — in italic print — are written in the format of Amendments to the Constitution. Each is followed with additional commentary in plain text. Extensive supporting information appears in the endnotes. In most cases, the original clause or source law is given in a box preceding the rewritten statement. These are organized as follows:

The Bill of Rights, Without Loopholes.

Clarifications on the Enumerated Powers

Limitations of Powers

The Balanced Budget

Breach of Trust: Impeachment and Recalls

No Loopholes: Getting Back to Basics. Copyright © 2012. Terence James Mason. All rights reserved by the author. Please do not copy without permission.

Author Bio

Terence James Mason was born and raised in Kentucky by an Army family. He has a post-graduate degree in science and mathematics, and works as a technical and business analyst for a small company in the south. His professional expertise includes experimental design, scientific and engineering analysis, hazardous waste management, safety, and security. His spare time is spent in church, with family, studying family and early US history, reading science fiction, and analyzing contemporary domestic and international politics and economics.

TTB title: No Loopholes

Author web site.

  Reviews

"No Loopholes is a timely book for our current political climate. It is an excellent discussion of the history of the Constitution and the Bill of Rights, and how they might, perhaps, be modified to prevent the excesses being found in our bureaucratized, top-heavy government, and to prevent the abuses we have seen in the past and no doubt will see again. I cannot recommend it highly enough for those who are voting citizens in these our United States."
~ Kat Cunningham, author of Dreamtime.
 

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