On Monday, 12/13, FoxNews presented an editorial excoriating "the Senate" for failing to bring the 'James Zadroga 911 Health and Compensation Act' to the floor for a vote.
The Fox editorialist announced that "Shame .Embarrassment. Outrage. Anger. All are proper reactions to the conduct of our Senators who will now find one excuse after another to explain away the fact that they have turned their back on American heroes"
Fox didn't mention that the bill didn't make it to the floor because of a Republican filibuster. It didn't identify the Republicans as those deserving the "shame, embarrassment and outrage"
To criticize the GOP would violate Fox's apparent "the GOP is always right" position.
On the other hand, by attacking the Senate as a whole. Fox fulfilled the long standing right wing anarchistic view that "government is the problem," as pronounced by President Reagan in his first inaugural address
By suppressing the fact of who was responsible, FoxNews was spreading false reports, also known as bearing false witness, which is condemned by the 10 commandments. Perhaps Fox should have those commandments displayed in its news rooms.
I know your issue is with Fox, but where in the U.S. Constitution does the authority lie to pass and sign into law a bill charging the U.S. tax payer for these medical bills? If your only issue is w/Fox, I apologize.
ReplyDeleteAustin
Anonymous
ReplyDeleteThanks for posting.
There are very few legal scholars who question the constitutionality of the Affordable Health Care Act.
The relevant Constitutional sections are Article 1, Section 8:
"3: To regulate Commerce with foreign Nations, and among the several States,"
and "18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."
I also believe that the third clause of the 10th amendment arguably gives Congress the authority:
"Article [X]
"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._ " [Emphasis added]
"The people" can only exercise their power through their votes, and thus a duly elected congress has the power to act in their name.
Note: this is a fairly novel theory, and I've only seen one other commentator make it -- so far as I am aware, it has not been advanced by a court as a ground for decision on this point.
The Affordable Health Care Act is another topic (clearly unconstitutional as well). I'm talking about the 9/11 responders act.
ReplyDeleteIt is the responsibility, by oath, for all persons in the federal government (and state governments) to uphold and defend the Constitution as it was written and understood at the time of ratification (including added amendments).
Making it up as they go is not in our best interest. I'm not a big fan of leaving the fate of my liberty up to the courts. Since the 1930s, they have done nothing but expand federal power.
Austin
Austin,
ReplyDeleteSorry, it didn't occur to me that anyone would challenge the constitutionality of the James Zadroga 9/11 Health and Compensation Act.
I now see that there some politicians and amateur "constitutionalists" who have advanced that argument - together with claims that Medicare is also unconstitutional.
I do not recall the details of the constitutional argument for such programs - and I have yet to see any legal authorities make that argument of unconstitutionality.
Even Scalia has accepted the Article 1 arguments for such powers. (See, e.g., GONZALES V. RAICH (03-1454) 545 U.S. 1 (2005) http://www.law.cornell.edu/supct/html/03-1454.ZS.html, especially Scalia's concurrence at http://www.law.cornell.edu/supct/html/03-1454.ZC.html)
So yes, I think it is constitutional, and given the massive weight of legal precedent, and authority, including any number of Supreme Court cases, I'd say that those who argue against such constitutionality bear a heavy burden of proof. Simply pronouncing it unconstitutional doesn't carry much water.
>>Since the 1930s, they have done nothing but expand federal power.
Actually, ever since they held the Constitutional Convention to replace the original Articles of Confederation, they have been expanding federal power. (The Articles of Confederation were a failure because they provided almost no power to the national government and the arguments of the anti-federalists were resoundingly rejected by the FF's and the people of the US who ratified our current Constitution.
If we were still an agrarian barter society with limited intercourse or travel among the states, where few people traveled more than a few miles from their homes, and most commerce involved trading corn for beans for smoked ham hocks, where almost all business was carried on by mom and pop enterprises, there probably wouldn't be much need to "expand" federal power.
But the world we live is is massively different from the world of the 1780s - and even from the world of 100 years ago.
Read the preamble to the Constitution for a great description of the founding father's vision of what government is to be: http://constitutionus.com/
My own explanation: law is intended to regulate and guide the interactions of people within a society.
As that society becomes more complex and expands its horizons, law has to follow.
Austin:
ReplyDelete>>I'm not a big fan of leaving the fate of my liberty up to the courts.
That is very sad. To whom would you leave the fate of your (and my) liberty? To whoever controls congress or the executive branch at any given moment? To "corporate" America which is establishing ever greater political power?
Our courts are a key component of our greatness as a nation and of why we can hold ourselves out to the world as a beacon of light.
I'm guessing you have been exposed to the repeated attacks on our courts and on "judicial activism" which have been such a predominant part of right wing ideology.
I believe those attacks have been for short term political objectives and have sadly (and inadvertently) cut away at the very foundations of our nation
I'm guessing you haven't studied our legal history (we are a common law system and an essential part of that system is judges making law.)
And I'm guessing you haven't read any defenses or explanation of "judicial activism" and how it has contributed much of value through our history.
For discussion of judicial activism and it's place in our legal system and history, please refer to my earlier blog entries at
Judicial Activism (In three parts)
http://rjw-progressive.blogspot.com/2009_04_01_archive.html
Discussing the Role of Judges & Judging
http://rjw-progressive.blogspot.com/2009/07/discusing-role-of-judges-judging.html
Karl Rove and the Mystery of the Obvious
http://rjw-progressive.blogspot.com/2009/05/karl-rove-and-mystery-of-obvious.html
Sorry for the multi-part reply…
ReplyDeleteQuickly, Judges make law? Really...I thought Congress passed bills and the President signed them into law or vetoed them. I don't recall the power of the judiciary in the Constitution including the power to make laws. We, Americans, increasingly find ourselves governed by men and women we did not elect and cannot remove from office.
These debates are not Democrat vs. Republican, they are about the U.S. Constitution. You assume I side w/Carl Rove types...which I don't. I don't just say "unconstitutional" to all the legislation I don’t like. I say "unconstitutional" to all unconstitutional provisions regardless of the designed good. While I know modern day liberals, Progressives, view the U.S. Constitution as a living document that gives government the benevolent power to alter it without amendments for "the people" (although they phrase it much more benignly). These "additional" powers are said to be inherent and incidental. Outcome is the only important goal. Certainly our ruling class in Washington D.C. always knows best (sarcasm intended).
However, this view has led to an operating procedure that allows all three branches of the federal government to overstep their constitutional boundaries without regard (hence my 1930s example). At the same time, none of them effectively exercise their legitimate powers to check the others. We are left with electing politicians as our only line of defense against growing government.
Austin
Part 2
ReplyDeleteIf the Constitution is no longer followed as a legal document, why have one at all? It seems that altering our form of government daily, weekly, yearly has become the status quo. Those who believe the Department of Education, Social Security, Medicare, 9/11 first responders bill, etc. are constitutional under the Article 1, Section 8 provisions or Article 2 or Article 3 or some other section or clause fundamentally misunderstand and distort the U.S. Constitution. They fundamentally misunderstand the relationship between the individual and government enshrined in the document. Government exists to secure our natural rights and liberties…for the American people these principles are outlined in the Declaration of Independence. Life, liberty, and the pursuit of happiness (freedom to obtain and own property). Private property rights were the cornerstone of our original republic.
There are several questions (not all inclusive) that must be considered (Note: the bulk of the info below is taken from the research and publications of Professor Robert G Natelson…suggest you read him, his source documents, and others):
First, is the U.S. Constitution not a grant of authority from the people of the United States? Were those same people not representatives of their state, acting in a sovereign capacity, to delegate authority to the general government? The Constitution's opening phrase "We the People," refers to the granters of the powers delegated w/in the document. It does not refer to pure democracy…we must understand what we have granted and how our representatives are bound. For instance, just because you and 51% of the rest of the country like the idea of a single-payer health care system does not grant the federal government the authority to enact one. The Article V amendment process, authority granted by 3/4 of the state legislatures/ratification conventions, is the only way to legally enact a change to the Constitution. I'm arguing about the way it should be and you argue about the way it is and the way you want it to be. Please don't defend your position w/unconstitutional legislation, executive orders, and judicial activism. Alexander Hamilton, who yearned for a heavily centralized government, in Federalist 78, "No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." This is part of the context under which the U.S. Constitution was ratified.
Austin
Part 2
ReplyDeleteIf the Constitution is no longer followed as a legal document, why have one at all? It seems that altering our form of government daily, weekly, yearly has become the status quo. Those who believe the Department of Education, Social Security, Medicare, 9/11 first responders bill, etc. are constitutional under the Article 1, Section 8 provisions or Article 2 or Article 3 or some other section or clause fundamentally misunderstand and distort the U.S. Constitution. They fundamentally misunderstand the relationship between the individual and government enshrined in the document. Government exists to secure our natural rights and liberties…for the American people these principles are outlined in the Declaration of Independence. Life, liberty, and the pursuit of happiness (freedom to obtain and own property). Private property rights were the cornerstone of our original republic.
There are several questions (not all inclusive) that must be considered (Note: the bulk of the info below is taken from the research and publications of Professor Robert G Natelson…suggest you read him, his source documents, and others):
First, is the U.S. Constitution not a grant of authority from the people of the United States? Were those same people not representatives of their state, acting in a sovereign capacity, to delegate authority to the general government? The Constitution's opening phrase "We the People," refers to the granters of the powers delegated w/in the document. It does not refer to pure democracy…we must understand what we have granted and how our representatives are bound. For instance, just because you and 51% of the rest of the country like the idea of a single-payer health care system does not grant the federal government the authority to enact one. The Article V amendment process, authority granted by 3/4 of the state legislatures/ratification conventions, is the only way to legally enact a change to the Constitution. I'm arguing about the way it should be and you argue about the way it is and the way you want it to be. Please don't defend your position w/unconstitutional legislation, executive orders, and judicial activism. Alexander Hamilton, who yearned for a heavily centralized government, in Federalist 78, "No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." This is part of the context under which the U.S. Constitution was ratified.
Austin
Part 3
ReplyDeleteSecond, can we recreate what the "Founders" meant, in 18th century terms, by the words and phrases in the U.S. Constitution? The answer is clearly yes. Simply review the Federalist Papers, the Anti-Federalist Papers, the state ratification debates, the official ratification documents, the notes of James Madison and other delegates to the Convention, the 1781 Articles of Confederation, the Declaration of Independence, Magna Carta, English Bill of Rights, Mayflower Compact, Fundamental Orders of Connecticut, Massachusetts Charter of Rights and Liberties, the constitutions of the eleven independent states, including Vermont (Rhode Island and Connecticut continued to use their colonial charters) following the Declaration of Independence, the 1776 Virginia Declaration of Rights, and legal dictionaries of the time. These documents will all paint a picture of how we ended up w/the ratified U.S. Constitution and the historical and legal implications of the document. Understand that nearly all the Founders had recently left their state as British subjects. The common history of the British political establishment was central to their understanding of government's goodness and wickedness. Common legal maxims of the times seem to have been lost on succeeding generations. I can't possibly go into all the details on what they intended in commonly understood maxims of the day.
Austin
Part 4
ReplyDeletehird, knowing what the Founders meant, should the U.S. Constitution, as written and understood at the time of drafting and ratification, legally apply today? More specifically, is the structure of the document and legal and common understanding of terms in the document binding on ever generation unless duly changed via the Article V provisions? The purpose of the U.S. Constitution, among other things, was to control the politically powerful. The Constitution came into effect on the basis of the Federalist's representations of its meaning in the state ratification conventions and the promise to add a Bill of Rights quickly. The Constitution was structured to further the values and principles of liberty (in the sense of Lockean natural rights), establish effective government, form a republican government, maximize decentralization, and codify a fiduciary government (a key provision). If unchanged by "disolv[ing] the political bands" that have connected the American people to the United States government or by an Article V amendment, the legal document still applies to this day. We fought a war in the 1860s to keep the Union together. The Founders knew the Constitution was imperfect before the ink was dry. They believed that, much like they had in its creation, others would rely on long-established rules and guidelines to interpret the document in the future. Unfortunately, you and I must be guided through the document today because the meaning of their words and phrases and the legalities of the articles, sections, and clauses would require historical context/understanding. In other words, we have to work harder than they did to understand the U.S. Constitution. We must read history outside of our public education to understand it. We must be open to new understandings and changes in what we were taught in public school. What was up is actually down. If we don't, general welfare becomes wealth redistribution, liberty is sacrificed for security, etc.
Are my views idealistic? Yes. Are there areas within the relationship between the individual and government that must continually be re-examined? Yes. But, the answer is not to turn natural law and the American concept of limited self-government on its head continually. The answer is not swap the sovereignty of the individual for the restrictions of governments. Government exists to serve us, not the other way around. You can disagree w/me on the effects of the facts, but please stop making up your own facts. If you want to change the U.S. Constitution via Amendments, more power to you. Be careful what you wish for.
Austin
Response Part 1
ReplyDeleteAgain, thank you for your thoughtful responses.
>> Quickly, Judges make law? Really...I thought Congress passed bills and the President signed them into law or vetoed them. I don't recall the power of the judiciary in the Constitution including the power to make laws.
Yes, judges have made law, continuously throughout our legal history. That is why our legal system is called a common law system.
The constitution addresses legislation, and empowers congress to pass it and the president to sign it. But legislation is not the only way of making law. Judicial decisions make law, and in the earlier days, those decisions were either based on prior judicial decisions or, in some cases, judges made up new law to fit new situations.
I've addressed this issue previously: please refer to
Perhaps most recently: http://rjw-progressive.blogspot.com/2010/01/celebrate-citizens-united.html discussing our legal history and the judicial activism of the Roberts Court
http://rjw-progressive.blogspot.com/2009/04/if-you-are-going-to-pursue-truth-you.html
http://rjw-progressive.blogspot.com/2009/04/judicial-activism-2-of-3.html
http://rjw-progressive.blogspot.com/2009/04/judicial-activism-3-of-3.html
http://rjw-progressive.blogspot.com/2009/05/judicial-activism-4-of-3.html
http://rjw-progressive.blogspot.com/2009/05/karl-rove-and-mystery-of-obvious.html
BTW, if you are concerned with activist judges, the Roberts Court is one of the most activist courts we have seen, especially in the Citizens United case
=================================
>>Part 2
>> If the Constitution is no longer followed as a legal document, why have one at all? It seems that altering our form of government daily, weekly, yearly has become the status quo.
It is merely an opinion that the Constitution is "no longer followed as a legal document."
Some don't like the way courts follow it, but if you have spent any time reading any constitutional law cases, you'll find that they are (for the most part) chock full of citations to the Constitution and prior constitutional law. (I say for the most part, because the con law opinions of Justice Thomas which I have read (and I don not claim to have read them all) tend to be pretty light on citations of authority.)
Interesting that you claim we no longer follow the constitution, and then cite the Declaration of Independence for legal concepts. The DoI was not and is not a legal document - it was a pamphlet designed to stir the blood of the revolutionaries. It is cited in legal cases as a source of thinking and of inspiration, not as a source of law.
>>(Note: the bulk of the info below is taken from the research and publications of Professor Robert G Natelson…suggest you read him, his source documents, and others):
I am familiar with some of his writing. He has his own fairly unique ideas. I suggest that when one is attempting to learn a complex subject such as constitutional law, one needs to start with an organized course and, more importantly, one has to carefully read a range of different views and positions.
If I recall, he is one of the writers who argues "we aren't a democracy, we're a republic." That is like arguing that Mickey Mantle wasn't a baseball player, he was a New York Yankees.
A republic is one form of democracy.
Response Part 2
ReplyDeleteYou argue against majority rule for legislation such as the Affordable Care Act.
True, if that act is unconstitutional, then the amendment rules and measures would apply to make it constitutional. The argument that it is unconstitutional remains a fringe argument mainly embraced by politicians. Time will tell, of course.
>>Please don't defend your position w/unconstitutional legislation, executive orders, and judicial activism.
The cases I have cited have all been decided and confirmed and reaffirmed by the courts.
Bare declarations of "unconstitutionality" of laws which have been upheld by the courts is not persuasive.
You might think something is unconstitutional and that the Constitution should be read i a specific way. Your views are not supported by our courts.
>> "No legislative act, therefore, contrary to the Constitution, can be valid.
Yes, and in 1803 the Marshall court made law in Marbury v Madison (5 U.S. 137) when it declared in that the federal courts have the principle of "judicial review" and created the federal courts' power to declare laws unconstitutional.
There is no grant of such power to determine the constitutionality of legislation and/or executive acts.
Those who maintain that only powers specifically granted in the Constitution are "constitutional" would have to argue that there is no constitutional way to determine constitutionality. A sort of constitutional Mobius Strip.
>>I'm arguing about the way it should be and you argue about the way it is and the way you want it to be.
"The way it is" is the way it was created and followed by the Founding Fathers and has been judicially reviewed by thousands of courts and court decisions. For example, the FF's didn't object to the facts of judges making law of those days - it was what they envisioned and promoted.
Your arguments about "The way it should be" hinge on the way you read the constitution; as do mine.
The difference is, that my views are informed by 200 years of court cases and legal scholarship. Your's seem to formed by the views of one or perhaps a few outlier academics.
Citing a few provisions of the Federalist papers falls far short of the authority of actual law and cases.
=======
>>Government exists to secure our natural rights and liberties…for the American people these principles are outlined in the Declaration of Independence. Life, liberty, and the pursuit of happiness (freedom to obtain and own property). Private property rights were the cornerstone of our original republic.
Note that the Declaration of Independence doesn't mention property rights.
It does declare that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
That to secure these rights [unalienable rights, that among these are life, liberty and the pursuit of happiness], governments are instituted among men, deriving their just powers from the consent of the governed.
When the majority of representatives of the people agree on a law, under our representative form of government, that is the consent of the governed.
The last two years of unprecedented obstruction of the majority by the minority defeats our chosen form f government.
Response Part 3
ReplyDelete>>Second, can we recreate what the "Founders" meant, in 18th century terms, by the words and phrases in the U.S. Constitution? The answer is clearly yes.
Anyone who has studied constitutional construction and the interpretation of laws soon sees that the answer is "no."
That view assumes that the all of "Founders" agreed on everything, which is naive. The Constitution is made up of a number of compromises, and there were many different views not only as to what would be the best provisions, but as to what the provisions included should mean
You refer to the Federalist Papers. Even within them, there were disagreements among the three drafters as to the meaning of some clauses.
And the long and complex history you cite is a great example of how various historic specifics can present views antithetical to the Constitution.
For example: many of the then existing state constitutions required various religious oaths for state officials. (A fact which some argue shows we are a "Christian nation.") In Article VI, however, the Federal Constitution flatly rejects the requirement of religious oaths: no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
So, based on the then existing state constitutions and their religious oath requirements, we might conclude that the Founders though religious oaths should be a requirement to hold office. In this case, the Constitution flatly establishes the fact that there was wide diversity of views and principles of governance in the then emerging nation of views.
would conclude that the can we say the founders wanted religious oaths
That rich historic record that you mention actually reflects the range of ideas and visions which were afoot at the time the Constitution was written and ratified.
As you rightly point out, the FF's were working in the shadow of (i) having escaped from the ultimate of over-bearing government, rule by a monarch, and (ii) the failure of the very decentralized Articles of Confederation.
When the FF's urged the idea of "limited government" they were thinking in terms of a limiting government from their experience of rule by a monarch.
And they were thinking in the context a fairly simple society, a primarily agrarian, barter society. To argue that their views on "limited government" in that agrarian context means we should stick to the same sort and degree of governance is to elevate theory over real life.
When you read the Federalist Papers, you will find repeated references to the realities of life in that day. They did not deny "what is," they based their ideas on reality.
>> Third, knowing what the Founders meant, should the U.S. Constitution, as written and understood at the time of drafting and ratification, legally apply today?
As discussed above, the idea that we "know" what the founders meant is naught but wishful thinking.
Robert G Natelson thinks he knows that with certainty: there are many other views which disagree with his "certainty."
Appeals to an outlier are fun, but, to me, unavailing. Repeating his theoretical academic views does not establish them as authoritative or definitive.
Response Part 4
ReplyDelete>> The Constitution came into effect on the basis of the Federalist's representations
That is a pretty bold claim. They were written to answer questions raised by some, principally in New York. I am not aware of any assertion that without their discussions the Constitution would not have been ratified.
BTW: the Federalist Papers are entirely silent on the question of "original intent" or "originalism."
Those who argue we have to follow "original intent" do not have any basis in the original literature to support that claim.
>>The Constitution was structured to further the values and principles of liberty (in the sense of Lockean natural rights),
Actually, Hume was also greatly influential as an Enlightenment philosopher and was very popular among the FF's in those days and he disputed the idea of "natural law." http://homepage.newschool.edu/het//profiles/hume.htm See, also, http://www.csa.com/discoveryguides/revolution/review7.php
Remember, these days were alive with competing philosophies - to look only to one and declare it defines the thinking of the day ignores the actual events of those days.
>>We must read history outside of our public education to understand [the Constitution.]
I agree completely, and have mentioned several historic facts and trends of that day which are generally ignored many today, especially those with reactionary ideas of our Constitution. Clinging to the thoughts and ideas of one fringe law professor is no better than relying on our public educations. (At least a public education generally reflects the understanding of many scholars and historians, and not just a single voice spouting theory.)
You appeal to history, but yet are unaware of the history of our courts and the role judge have played in creating the laws of our nation. (There is a whole legal publishing industry which tries to regularize and harmonize the wide range of judge made law. It is a series of widely used volumes know as the "Restatement of..." series. See: http://en.wikipedia.org/wiki/Restatements_of_the_Law)
>>You can disagree w/me on the effects of the facts, but please stop making up your own facts.
To say it is one thing: anyone can say anything, Can you show where I have "made up my own facts?"
I would argue that you have, in sense, "made up a fact" by pointing only to Locke as a philosopher who influenced the FF's and asserting that his views establish the views of the FF.
>>If you want to change the U.S. Constitution via Amendments, more power to you. Be careful what you wish for.
I agree completely.
I disagree that with your views as to what laws are constitutional and what laws would require a constitutional amendment.
My views are based on centuries and thousands of legal cases and a range of legal scholars.
Be wary of fixing on one man's views - I believe that to understand the Constitution and its role in our society, one must study the work of many.
I'll start by agreeing that the Roberts Court is activist. However, I'll say nearly every court has been activist since 1787, in my opinion. You continue to point to judicial precedence to make your point. Some how Article III does not define the authority and limits of the court to you. By your arguments, there is no such thing as an activist court despite your contempt for the Roberts Court. Their decisions are just as valid as all the ones you agree with. They are part of precedence...like it or not. They heard the case, made a ruling, and now there is precedence and an interpretation of the Constitution. You contradict yourself. I am keenly aware of the history of our courts. That is why I have studied them and generally found that they, much like the other branches, have not heeded their fiduciary responsibilities. The question is how do we check the power of a judiciary, or other branch, that operates outside their Constitutional bounds? Thus the quote from Federalist 78.
ReplyDeleteI have often wondered why Congress accepted the bottom line w/Marbury v Madison. The Eleventh Amendment was proposed and adopted to more clearly define judicial boundaries.
Despite Article I stating "All legislative Powers herein granted shall be vested in a Congress of the United States" and later in Article I, Section 8 Congressional authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" somehow still leaves open the possibility that the judiciary has some legislative power blows my mind. I don't see any legislative language in Article III. Apparently, only the opinions of the court, that go unchallenged by Congress, are what matter. Making law from the bench is okay because it is done. The Supreme Court (and Congress and the Executive) are in a continual constitutional convention. Our democratic system relies on adherence to constitutional limits by all branches. When this adherence is violated, it undermines the rule of law. Studying the verbatim account of what occurred during the framing, debate, and ratification is the only way to interpret the intent and meaning of the Constitution. That is why I listed so many primary sources.
Please find me an original source, not judicial ruling, that promotes the judiciary's power to make laws as the accepted mode for our general government's action.
ReplyDeleteI used Natelson as one source, I didn't "fix" on him. As I said, I have done very in depth review of the majority of documents I listed. I have checked many of Natelson's source documents. I don't agree with him on everything he writes. Just because you disagree with him or because he was not a professor at Harvard Law School, does not make him fringe or cause to dismiss him. Does his analysis of the facts warrant due consideration? Surely they do. Maybe some one like Raoul Berger or Randy Barnett would better satisfy your requirement for academic pedigree, to name two. They, too, share many of my views on the Constitution.
We do know that if the Federalist Papers had not convinced NY and Virginia to ratify the Constitution, the whole exercise would have (very likely) collapsed. It would have been very hard to create a union that was not only divided, but missing two economically and politically powerful states. The Federalist Papers were key to the Constitution, as were all the Federalists providing intent to the other ratification conventions.
I don't recall citing the D of I as a legal document, however it is clearly the single most important expression of the ideals of U.S. governance. As a statement of the fundamental principles of the United States, the Declaration is an enduring reminder of the country's commitment to a government restrained by consent and equal rights for all. The Declaration has been recognized as the founding act of law establishing the United States (meaning each state) as a sovereign and independent and acting in unison, and Congress has placed it at the beginning of the U.S. Code, under the heading "The Organic Laws of the United States of America." The Supreme Court, however, has generally not considered it a part of the organic law of the country. I'm certain King George treated it as a legal document. If your name was on that document, you were guilty of treason.
Clearly, all the Founders were not of one single mind. But to say that Lockean Natural Law was not a major component of their ideas on governance is inconsistent with the established history.
I appreciate a spirited debate. I appreciate your views, despite my disagreement on the majority of them. I have missed responding on many of your other points, for that I apologize. Cheers.
Austin