How The Ruinous "Living Constitution" Idea Took Root

How The Ruinous "Living Constitution" Idea Took Root

George Leef , Contributor

The “living Constitution” theory amounts to saying that Supreme Court justices should be allowed to rewrite the foundation of our government as they see fit, sometimes adding ideas that weren’t included, sometimes ignoring ideas that were.

Mostly, “living Constitution” decisions entail the latter, turning a blind eye to the document’s clear limits on governmental power.

From their experience with the British crown, the Founders had a deep fear of government and sought to keep its authority strictly limited. But their philosophy on the proper scope of government conflicts with the views of Americans who believe that ever-expanding state power is the key to a good society. For them, the real Constitution is an obstacle to their goals -- hence the need for a pretty euphemism – “living Constitution” to cover up their undermining of the rule of law.

Where did this ruinous idea come from? When and how did it arise? My supposition had always been that it was a creation of the “progressives” in our legal system early in the last century, exemplified by Justice Oliver Wendell Holmes, and liberal intellectuals who favored FDR’s vast expansion of federal authority.

That view is not exactly right, argues John Compton, Assistant Professor of Political Science at Chapman University, in his new book The Evangelical Origins of the Living Constitution. Compton contends that the “living Constitution” idea arose much earlier in our history, an outgrowth the moral reform movement that swept across the United States from the 1820s until the early decades of the 20th century.

Zealous champions of moral reform, then as today, thought that a proper function of the law was to eradicate vice and immorality. They were stymied, however, by the Constitution’s limits on governmental power. Compton explains, “For while the designers of the American constitutional order did not set out with the aim of inhibiting the moral development of future generations, they did envision a republic whose fundamental law would hinder efforts to interfere with settled property rights or restrict the flow of goods in interstate markets.” But that was exactly what the anti-liquor and anti-lottery forces wanted – for the law to declare that there could be no legitimate property rights in alcoholic beverages or lottery tickets and to block their flow in markets altogether.

Compton’s history is compelling. The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.  Continue reading at  ...

https://www.forbes.com/sites/georgeleef/2014/07/15/how-the-ruinous-...

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Constitution 101: Living and Breathing is the Same as Dead

Mike Maharrey     Tenth Amendment Center

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Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977] 

Author: Raoul Berger     

Foreword: Forrest McDonald   

Edition used:

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997). 7/10/2018. a href="http://oll.libertyfund.org/titles/675%3E">http://oll.libertyfund.org/titles/675>;

Available in the following formats:
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About this Title:

It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on “a continuing revision of the Constitution, under the guise of interpretation.” Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out that “the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power.” This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement: 

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. 

Read much, much more at Online Library of Liberty at  ...

http://oll.libertyfund.org/titles/berger-government-by-judiciary-th...

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Berger, Raoul (Edit Author Profile)  100 Articles  

HeinOnline   https://heinonline.org/HOL/AuthorProfile?search_name=Berger%2C+Raou...

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The Struggle Over the Meaning of the 14th Amendment Continues

The fight over the 150-year old language in the Constitution is a battle for the very heart of the American republic.

https://www.theatlantic.com/amp/article/564722/

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July 9, 2018 6:22 pm
On the 150th Birthday of the 14th Amendment, Its Future Hangs in the Balance
By  Ed Kilgore

http://nymag.com/daily/intelligencer/amp/2018/07/14th-amendment-is-...

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Forrest McDonald

UNORTHODOX AND PARADOX: REVISITING THE RATIFICATION OF THE FOURTEENTH AMENDMENT

https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant...

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Was the Fourteenth Amendment Constitutionally Adopted?
By Forrest McDonald

https://www.abbevilleinstitute.org/review/was-the-fourteenth-amendm...

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Killing the Incorporation Doctrine
By Ryan Walters

A review of The 14th Amendment and the Incorporation Doctrine by David Benner (Minneapolis: Life and Liberty Publishing Group, 2017) Even though I have always been a strong advocate of states’ rights and sovereignty, and… »  https://www.abbevilleinstitute.org/review/killing-the-incorporation...

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There is No "Fourteenth Amendment"!
by  David Lawrence
U.S. News & World Report
September 27, 1957

A MISTAKEN BELIEF — that there is a valid article in the Constitution known as the "Fourteenth Amendment" — is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America. No such amendment was ever legally ratified by three fourths of the States of the Union as required by the Constitution itself. The so-called "Fourteenth Amendment" was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt. There were 37 States in the Union at the time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it. So it failed of ratification.

The undisputed record, attested by official journals and the unanimous writings of historians, establishes these events as occurring in 1867 and 1868:

Outside the South, six States — New Jersey, Ohio, Kentucky, California, Delaware and Maryland — failed to ratify the proposed amendment.
In the South, ten States — Texas, Arkansas, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi and Louisiana — by formal action of their legislatures, rejected it under the normal processes of civil law.


A total of 16 legislatures out of 37 failed legally to ratify the "Fourteenth Amendment."
Congress — which had deprived the Southern States of their seats in the Senate — did not lawfully pass the resolution of submission in the first instance.
The Southern States which had rejected the amendment were coerced by a federal statute passed in 1867 that took away the right to vote or hold office from all citizens who had served in the Confederate Army. Military governors were appointed and instructed to prepare the roll of voters. All this happened in spite of the presidential proclamation of amnesty previously issued by the President. New legislatures were thereupon chosen and forced to "ratify" under penalty of continued exile from the Union. In Louisiana, a General sent down from the North presided over the State legislature.
Abraham Lincoln had declared many times that the Union was "inseparable" and "indivisible." After his death, and when the war was over, the ratification by the Southern States of the Thirteenth Amendment, abolishing slavery, had been accepted as legal. But Congress in the 1867 law imposed the specific conditions under which the Southern States would be "entitled to representation in Congress."


Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the "Fourteenth Amendment," took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.
President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.


Secretary of State Seward was on the spot in July 1868 when the various "ratifications" of a spurious nature were placed before him. The legislatures of Ohio and New Jersey had notified him that they rescinded their earlier action of ratification. He said in his official proclamation that he was not authorized as Secretary of State "to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of any State legislature to recall a previous act or resolution of ratification." He added that the amendment was valid "if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States." This was a very big "if." It will be noted that the real issue, therefore, is not only whether the forced "ratification" by the ten Southern States was lawful, but whether the withdrawal by the legislatures of Ohio and New Jersey — two Northern States — was legal. The right of a State, by action of its legislature, to change its mind at any time before the final proclamation of ratification is issued by the Secretary of State has been confirmed in connection with other constitutional amendments.
The Oregon Legislature in October 1868 — three months after the Secretary's proclamation was issued — passed a rescinding resolution, which argued that the "Fourteenth Amendment" had not been ratified by three fourths of the States and that the "ratifications" in the Southern States were "usurpations, unconstitutional, revolutionary and void" and that, "until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment."

What do the historians say about all this? The Encyclopedia Americana states:

"Reconstruction added humiliation to suffering.... Eight years of crime, fraud, and corruption followed and it was State legislatures composed of Negroes, carpetbaggers and scalawags who obeyed the orders of the generals and ratified the amendment."

W. E. Woodward, in his famous work, "A New American History?" published in 1936, says:

"To get a clear idea of the succession of events let us review [President Andrew] Johnson's actions in respect to the ex-Confederate States.

"In May, 1865, he issued a Proclamation of Amnesty to former rebels. Then he established provisional governments in all the Southern States. They were instructed to call Constitutional Conventions. They did. New State governments were elected. White men only had the suffrage the Fifteenth Amendment establishing equal voting rights had not yet been passed]. Senators and Representatives were chosen, but when they appeared at the opening of Congress they were refused admission. The State governments, however, continued to function during 1866.

"Now we are in 1867. In the early days of that year [Thaddeus] Stevens brought in, as chairman of the House Reconstruction Committee, a bill that proposed to sweep all the Southern State governments into the wastebasket. The South was to be put under military rule.

"The bill passed. It was vetoed by Johnson and passed again over his veto. In the Senate it was amended in such fashion that any State could escape from military rule and be restored to its full rights by ratifying the Fourteenth Amendment and admitting black as well as white men to the polls."

In challenging its constitutionality, President Andrew Johnson said in his veto message:

"I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure."

Many historians have applauded Johnson's words. Samuel Eliot Morison and Henry Steele Commager, known today as "liberals," wrote in their book, "The Growth of the American Republic":

"Johnson returned the bill with a scorching message arguing the unconstitutionality of the whole thing, and most impartial students have agreed with his reasoning."

James Truslow Adams, another noted historian, writes in his "History of the United States":

"The Supreme Court had decided three months earlier, in the Milligan case, ... that military courts were unconstitutional except under such war conditions as might make the operation of civil courts impossible, but the President pointed out in vain that practically the whole of the new legislation was unconstitutional. ... There was even talk in Congress of impeaching the Supreme Court for its decisions! The legislature had run amok and was threatening both the Executive and the Judiciary."

Actually, President Johnson was impeached, but the move failed by one vote in the Senate.

The Supreme Court, in case after case, refused to pass on the illegal activities involved in "ratification." It said simply that they were acts of the "political departments of the Government." This, of course, was a convenient device of avoidance. The Court has adhered to that position ever since Reconstruction Days.

Andrew C. McLaughlin, whose "Constitutional History of the United States" is a standard work, writes:

"Can a State which is not a State and not recognized as such by Congress, perform the supreme duty of ratifying an amendment to the fundamental law? Or does a State — by congressional thinking — cease to be a State for some purposes but not for others?"

This is the tragic history of the so-called "Fourteenth Amendment" — a record that is a disgrace to free government and a "government of law."

Isn't the use of military force to override local government what we deplored in Hungary?

It is never too late to correct injustice. The people of America should have an opportunity to pass on an amendment to the Constitution that sets forth the right of the Federal Government to control education and regulate attendance at public schools either with federal power alone or concurrently with the States.

That's the honest way, the just way to deal with the problem of segregation or integration in the schools. Until such an amendment is adopted, the "Fourteenth Amendment" should be considered as null and void.

There is only one supreme tribunal — it is the people themselves. Their sovereign will is expressed through the procedures set forth in the Constitution itself.

[END]

[OCR'd text from U.S. News & World Report, September 27, 1957, page 140 et seq.]

http://www.constitution.org/14ll/no14th.htm

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Good assertions here. Thanks for posting.

sad isn't it. Eighteen pages of rules creating and limiting a federal government turned into 3000 pages (and growing) ruling over every aspect of everybody's lives.

American912, Every day I am grateful you joined us. I think that the abcnews story may be a deliberate story at this juncture to incite the progressives to go for a full court press to excite the left to get on with a rewrite of our document. Of course with our new President who will get at least one judge perhaps 2 more during his term(s) we have a chance to keep them from putting points on the board.

I swear there is a pathology a sick one on the left. I am so glad I am a Trump deplorable.

Love it! I am a 10ther. 

Well I suppose these Judges could be replaced with the new posse in town. Will see. I read a story last night that Soros has been mucking backed by his billions into elections of prosecutors. I wish that Congress would enact a law that prevented Green Card holders from donating to campaigns.

John McCain benefited as it has been reported by Soros and good grief John Kerry and his wife. No green card holders like Soros should not be allowed to contribute a dime. I'm at the stage that unless the office holders, the elected, do not directly out of their own pocket play an honest donor they should not be running their own Foundations instead they could pick a favorite one and lend their name as a donor.

http://www.wnd.com/2008/02/56177/

Clearly as demonstrated by the many replies our federal gov't has moved too far from the original document and the branches of gov't all have contributed to this move. I doubt not that different parties grassroot or not say one thing in their platforms but would in action stop at nothing in going for the brass ring. Power wrings out dollars. Yes the SEC influences who is appointed a judge. I was amazed aa few years go to discover how many banks are operated within the gov't. We all dislike the federal reserve and I personally dislike Boeing's bank the EX-IM but there are more banks, State has their own piggy bank and evidence points to the CIA s well. You can bet when one bureaucratic agency figures out a stick others follow. I appreciate the discussion of the 16 & 17 amendments

Well darn it I had jotted a document probably around 3 years ago that identified some of these banks. I am having problems locating the document. I have a habit of blowing off steam by writing to myself. There is for starters the easy ones to remember, Federal Reserve, Federal Financing Bank [FFB], EX-IM, OPIC is the U.S. Government’s development finance institution but there are more. Not sure where to place Fannie Mae since it is described as " a government-sponsored enterprise (GSE) and, since 1968, a publicly traded company" but it's safe to say I think a bank of sorts. Now the State Dept has fingers in everything and I can't for the life of me recall the acronym they used at one point to talk about "their personal piggy bank" sorry. Perhaps you can help with all this.

as I read that the implication of it all is that a proposed amendment must come from an article V convention authorized by congress.

... and that is wrong. Congress surely likes everybody to believe that but an amendment is not entirely reliant on a article V convention proposing it, nor is an article V convention of the states reliant on congress' authorization for it to be held. The initial phases of the 21st amendment movement and the current ongoing Article V convention prove both of those assumptions wrong.

yeah, congress want's us to believe that. So much so that it took over the final phases of the 21st amendment coming to fruition so not to allow the alternative precedent to be set. It wants us to believe the states cannot pass and ratify an amendment without a congressional authorized convention, but it just ain't so. 

well, really me too Am. I'm not sure I added any clarity, not even sure I fully understood the whole article myself.

I just got a sense of a 'between the lines' implication, a familiar one that I have 2¢ about.  ;' /

I may be coming out of left field here but from what little I know and have been able to remember, the States have not always upheld their duty to fully confirm amendments.  They are supposed to repeat word for word, coma, period, and exclamation point exactly what is in an amendment.  It's my understanding this was not done on the 16th and perhaps the 17th and was  pushed through by a then Secretary of State.  This is not abiding by the constitution and gives pause to presenting anything new.

They simply do not follow the rules/laws governing any additions.

Norma

I'm more not in favor of more amendments than for it too. The only one I'm interested in would again be similar to the 21st amendment, an amendment repealing the 3 poisonous amendments which should have never been added to the recipe - the 14th, 16th and 17th. Seems to me adding others like term limits or BBA are likely at best wasted effort or counter-productive until that has been done and given time to have an effect.

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