In many ways, condemnation of interpretive rulings is disingenuous and simplistic: the Constitution and laws must be understood in the context of how words, phrases, and sentences were used at the time a law was written. Terminology and even word arrangements used in written law are often the product of a highly specialized dialect known only to those with appropriate training; and even the most ardent of strict constructionists cannot ignore the historical legislative, political, and social backdrops against which laws have been written, enacted, and enforced.
Moreover, because the United States legal system is based upon a complex hybrid of statutory law and common law, it is the duty of the judiciary in the United States to ensure the survival of the common law component (established through court precedents) by demanding the privilege of judicial review, as first advanced in the 1803 Supreme Court case, Marbury v. Madison, the practical effect of which was to bind judicial decisions, and subsequent respect by courts for those decisions by stare decisis, to the concept of "constitutional law." It is to the purpose of anchoring court decisions in gravity that, while the Congress may write laws that the President then enforces, the judiciary constructs law as a body through affirmation of its interpretations of the Constitution and the several laws crafted by Congresses from term to term and time to time.
Returning to the matter of simply reading the plain language of the Constitution, this has as much to do with the history of the language as it does with the history of law. The Second Amendment is an excellent case in point:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Late 18th Century writers had the annoying habit of using a comma to separate the subject of a sentence from the predicate, but even setting aside that curious artifact (along with the same penchant as High German for capitalizing nouns), the above sentence is an abomination. It begins with what appears to be the subject:
A well regulated Militia...
Then, a comma shows up, meaning that either the 18th Century scribe is moving on to the predicate, or he is preparing to insert a so-called "non-restrictive" phrase or clause, a string of words modifying the subject but not necessary to the sentence meaning. The second possibility seems to be applicable:
...being necessary to the security of a free State...
Yes, that would modify an immediately preceding subject:
A well regulated Militia, being necessary to the security of a free State...
Okay, we're in business; here comes the predicate:
...the right of the people to keep and bear Arms...
Oh, my. That looks like a subject; but the sentence already delivered the subject way back there at the beginning! Worse, a comma follows this little phrase, and that could be interpreted in one of at least three ways: it could be a comma splice; it could be one of those abominable commas 18th Century writers used to separate subject from predicate; or (and this one is really maddening), it could mean that the entire phrase from the last comma had been a non-restrictive adjective clause modifying a prior subject!
...shall not be infringed.
Well, thank God for the occasional period to end the suffering of a mangled sentence.
Years ago, when I taught English grammar and paralegal courses, I complained to a historian on the faculty about the Second Amendment. He said that, were I to have confronted Thomas Jefferson, himself, with my fussing, he would have casually and quite absently dismissed me with a slow wave of the hand and something to the effect, "You know what I mean."
Well, yes, I suppose so: revolutionaries can be obtuse.
Moving along, the Constitution has plenty more interesting language in store for the unprepared, but it also has extraordinary context invisible to the unknowing. When I tell my students that the Constitution of the United States is a "treaty between the federal government and the several states that form the union of those states," they are entirely perplexed. They have never before heard the Constitution described as a treaty. A treaty?
From there, the situation deteriorates because they have no idea of what I mean by ius naturalis (or ius naturale to remove the masculine aspect).
I explain by beginning with this declaration: "The Constitution grants you NOTHING!"
That seems to fly in the face of everything they know (what little it is the typical American college student knows) about the Constitution. Surely, the Bill of Rights begins by laying out essential rights we are given.
In fact, it does nothing of the kind, and the framers did not intend to "give" us rights via the Constitution or any other document; but to understand why this is the case, we must go all the way back to ancient Greece and then to the Roman political theorists who picked up and ran with an amazing observation Greek philosophers before them had made.
When Greek armies were rocking the known world, communiques sent back to the homeland included documents of peoples encountered. Translating the laws of foreigners was no easy task, but the fruits of such labors revealed something rather interesting about the laws of various peoples: although great variety and variation could be found in laws from place to place, some laws seemed to be just about everywhere. Although it would be the Romans and later scholars who would put a solid conceptual and political framework around the idea, it was quite apparent that a core of principles, embodied in a set of seemingly universal laws showing up from one place to the next, existed.
The Romans would come to call this ius gentium, the law of nations, or, as constructed in statutes, the law that applies to the people regardless of whether they be citizens of Empire or foreigners. St. Thomas Aquinas would later take it one step further and postulate that ius gentium is, essentially, an addendum to ius naturalis, the "natural law" that transcends the vicissitudes of this society or that tribe, positivistically inhering to the collective of humanity and to each within that body.
Truth be told, much of this apparently universal law that had begun to emerge by the Middle Ages in high-minded, grueling complex thinking had begun with those observations of a seemingly universal set of observed laws from nation to nation, and this observation led to what the Romans would later refer to as lex ratio, or rational law. Unknown to the Greeks and their successors, the Romans, that common set of laws that seemed for all the world to point to something transcendent and universala ius naturaliswas actually nothing more than the result of many of the peoples being encountered all being bound historically and linguistically to tribes that had long before lived around the Black Sea whose members, in their waves of migration perhaps 3,000 to 5,000 years previously, had gone in every direction, carrying not just their earlier ways, but also a common root language, what modern linguists refer to as Proto-Indo-European (PIE), a hypothetical language upon which a huge number of later languages came to be built in layers as the Black Sea tribes fanned out. Latin and its derivatives, Germanic tongues, Greek, and even Sanskrit have their common roots in PIE. In fact, a regular set of rules about how sounds in one Indo-European language relate to sounds in another language of the super-family was first discovered by none other than Jacob Grimm of the Grimm Brothers of fairy tale fame.
That's interesting in and of itself, but what is more interesting is that the Black Sea tribes were quite aware of the importance of social bindings, and we know this because a large group of words across PIE languages still carry the fossil root of important words that begin with the letter "l": lock, line, ligature, lokk, loc, uslok, Loche, loquet, lineage, and lygos, for example. That last one, lygos, is Greek and suspiciously conflatable with logos, the "logic" used in forensics, which derives from the Latin forensis, meaning (among other things) "legal." The Greeks dearly loved word play, especially to the effect of connecting concepts through devices of letter replacements and rearrangements (what is called "metathesis") in words, as in "Hercules" deriving from "Heracles," he who is anointed of the goddess Hera.)
Law is a binding of people, and the 18th Century French philosopher Jean-Jacques Rousseau, consolidating thoughts of some of his contemporaries, went so far as to postulate a "social contract," an implicit instrument that, unlike a common contract binding one person to another, binds a people to their common state. Each performs duties for the other and anticipates reciprocal benefit in return. In more modern legal terminology, each party to this contract suffers "legal detriment" and contractually enjoys "consideration" as a result. Rousseau used the concept of this social contract to replace with somewhat greater substance in codifiable law the less tangible political reliance upon natural law, itself, that was on the mind of John Locke, his predecessor in political philosophy.
The Founding Fathers of this country were well-versed in the thinking of both the ancients and their contemporaries in Europe. They knew very well that ius gentium as nothing more than a class of laws had conceptually evolved, and certainly not coincidentally, with lex ratio into a firm belief in ius naturalis, law that is timeless. St. Thomas Aquinas was certainly favorable to this idea, and several influential thinkers of the 15th and 16th Centuriesamong them, Huig de Grotius in Holland and Francisco de Vitoria in Spainwere advancing a "law of reason" inherent in ius naturalis. Vitoria built the case and criteria for what would constitute just war, deeply troubled as he was by the violence being committed by the Conquistadors against natives of the New World. Grotius dismissed the confinement of ius naturalis to trivial, animalistic rules of behavior like producing and caring for the young; if it exists (and these are most decidedly not Grotius' words, but rather my own), then natural law is undoubtedly neither probative in construct nor utilitarian in ontological valence, although by the later part of the 18th Century, it would be about the only deep anchor in law and theoretical reasoning for justifying all-out, separatist rebellion.
The rebels in the British Colonies of North America gladly took hold of natural law: it flows neither from sovereignty nor from its stewards. For purposes of historical, if maybe unconscious, continuity, natural law comported for the restive but intellectual colonists with the earlier rebellion of Protestantism and its predecessors like Lollardism in that the Word and, hence, the will of God may be revealed to the common man without intercession by putative, and necessarily mortal, representatives of God in the stations of the church. To this admittedly speculative argument, it did not hurt one bit that the Founding Fathers were almost to the last man affiliated with Freemasonry, a secretive society in open ideological, religious, and political war with the Holy Roman Catholic Church.
In the Virginia Declaration of Rights dated May 15, 1776, George Mason got quite explicit about ius naturalis with this clause: "That all men are by nature equally free and independent and have certain inherent rights..." [emphasis added].
The Declaration of Independence subsequently riveted the source of rights accorded men not to the state, but to higher authority:
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, 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, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
There, in the first paragraph, is the invocation of "Nature"; then, in the second paragraph, comes the odd adjective "unalienable" used to describe the rights endowed to men by their Creator: unalienable, not inalienable. The rights accorded men may, indeed, be taken away, but they cannot be extinguished. The extent to which a government separates itself from the recognition of the rights men have by natural law is the equivalence of that government's descent into tyranny, and only the consent of the governed, feeble as that consent might be, serves to promote those unalienable rights owned by the governed.
The Constitutionin its Articles, its Bill of Rights, and its subsequent Amendmentsis, then, not a document granting rights because no government, no document, indeed, no person or thing on Earth may grant that which is by natural law unalienable. The state as a rightful and legitimate authority may only circumstantially and parsimoniously circumscribe rights from natural law, and it is to that purpose that the United States Constitution may exist as an express treaty between the several states and the separate and supreme sovereign they form in union. The Constitution, then, expressly defines the circumstances, situations, and extents in which the federal government may arrogate to itself the ability to diminishnot to extinguish, not to repudiate, not to abolish, but only to diminish as necessary for the common goodthe rights of the governed as citizens both of their respective states and of their common nation as a federation of those several states.
With all that as backdrop, in some places seemingly disconnected and summary, this article concludes with the full text of the Fourth Amendment to the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Amendment is clear: the Constitution is recognizing a right, then clearly describing, first, the procedural circumstances ('Oath or affirmation, and particularly describing' what is to be searched and seized and against whom an arrest is to be made) and, second, the substantive reason ('probable cause') by which that right may circumscribed as necessary by the state.
The plain languagecapturing as it does phenomenally complex, interwoven threads of history, linguistics, and philosophyis available for all, even politicians and judges of the 21st Century, to read and understand.
Natural law does not hide from the just; neither does it vanish at the will of tyrants.
The Dark Wraith rests his case against the New American Century.