You're the one who implied that meaning of the Constitution should be gathered from the "sources the Framers tapped." How many time was the Bible tapped as a source during the making of the Constitution?
I will give you an example; Natural Rights. Jefferson referenced them in the Declaration, and they are mentioned in the 5th amendment "nor be deprived from life, liberty, or property". The idea comes from Locke, and basically says that because humans are created in God's image, they are entitled to certian rights that the state cannot take away. This nation was largely Christitan at the time, as were the Framers and Locke, so the "God" in that context is a Christian God.
Another example,
checks and balances. Since man was understood as inherently sinful by the Framers, government was needed to control that sinful human nature. Since the government was run by men (again who are inherently sinful) a need for a system of checks and balances was neccessitated. Again, Madison if Federalist 51:
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Ben Franklin wrote in response to a manuscript Thomas Paine sent him that advocated against the concept of a providential God:
You yourself may find it easy to live a virtuous life, without the assistance afforded by religion; you having a clear perception of the advantages of virtue, and the disadvantages of vice, and possessing a strength of resolution sufficient to enable you to resist common temptations. But think how great a portion of mankind consists of weak and ignorant men and women, and of inexperienced, inconsiderate youth of both sexes, who have need of the motives of religion to restrain them from vice, to support their virtue, and retain them in the practice of it till it becomes habitual, which is the great point for its security. And perhaps you are indebted to her originally, that is, to your religious education, for the habits of virtue upon which you now justly value yourself.
It seems to me the debate here is over the
common law rules of construction method of interpretation vs. originalism.
I would still like to see a textual base for that being the method for interpretation of the constitution subscribed to by the Framers, but even assuming that, I still have two questons:
1: How does common law interpretation account for the 200+ year gap in the present vs. when the laws were created?
There are a lot of interpretation issues today that wouldn't have been present at that time, namely due to the growing time gap between today and the founding of the nation. People today view the world differently, certain ideas, like natural rights, have no meaning to the average person today, and a different meaning from a scholarly point of view then they did at that time. for example, the idea of Natural Rights has become Human Rights, and lost any connection to being created in God's image; just because you are born human, you have those rights. To correctly interpret the constitution, you logically need to view it in the historical context it was created in.
Basically, I am saying, while that may have been the method subscribed to at that time, and the best one to go by then, why should it still be considered the best one to go by today?
2: How can common law be used to interpret the constitution?
the constitution was written very broadly and generally, intentionally. It didn't so much create laws as it did provide the framework for laws to be created in. The constituton broke down how the powers would be divided, the limits of those powers and the checks and balances system. In certian areas (like elections, and impeachments), it spelled out certian specific procedures, but left the actual lawmaking to the legislature.
Common law basically did for the legal system, what the constitution did for the rest of the government; provided a framework to function in. Certian concepts and principles were taken from the British common law a well; such as, Stare decisis, Statute of Frauds, etc. But common law only clarified procedure and how certian laws should be applied. Common law says nothing about weather a certian law or action is unconstitutional and beyond the scope of the limited powers given to that part of the government.
For example; how does common law help determine what is ment by the right to bear arms in the second amendment? Why would you turn to common law, instead of what that amendment was understood to mean by those who wrote that amendment and those who ratified that amendment, to clarify the meaning?
