Sunday, February 21, 2016

Correcting Misconceptions and Debunking Myths about the United States Constitution

           In honor of the late United States Supreme Court Justice Antonin Scalia, the great originalist, I thought I would briefly correct some common misconceptions and debunk several common myths about the Constitution, the document he revered as the charter for American self-government that is based upon representative federal republican ideals, according to the original meaning of the text at the time of the ratification of the Constitution or of its Amendments:

            The Constitution establishes the “United States,” a federal union of the several States.  Although this union enjoys sovereignty because it shares certain government powers that are given to it by the States, it is not strictly speaking a “government.”  Indeed, there is no reference to “government” in the Constitution in regard to the United States, except in Article I, Section 8, in regard to the “Seat of Government” (the capital).  That the United States is a union of states is the basis of the principle of divided government, or federalism, in which powers are divided between or shared by the federal and state governments. 

            The United States may not regulate intra-state commerce.  Article I, Section 8 authorizes it only to regulate inter-state commerce.

            The United States has the exclusive authority to enact uniform laws in regard to naturalizations under Article I, Section 8, but immigration and the general entrance of foreign visitors into the several States is not an exclusive federal authority, as the Constitution does not mention it.  As the authority to regulate the entrance of foreigners into the several States is not prohibited to the States, and this power is also federal in nature, it is thus shared by both the United States and the several States.

            Congress has the power under Article I, Section 8 to “declare War,” as well as some other limited war-making powers, but the power to make war generally is inherit in the office of the President as the “Commander in Chief” of the armed forces under Article II, Section 2.  A declaration is a statement.  A declaration of war is a statement that a state of war exists between one state and another.  It is not an authorization of war.  A President thus may make war without a declaration of war and Congress may declare war without the President making war.

            The Supremacy Clause of Article VI establishes the Constitution, as well as all federal laws and treaties, as the “supreme Law of the Land,” but laws and treaties are only binding if they do not violate the Constitution, as interpreted by the judicial Branch, which is established by Article III.

            There is no constitutional “right to speak,” “right to assemble,” etc., in the First Amendment or elsewhere in the text, which instead refers to the “freedom” of speech, etc.  A freedom is the exercise of a particular liberty to act or to refrain from acting, whereas a right is a legal claim.   

            There is no “separation of church and state” in the Constitution.  The First Amendment prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof . . .”   Note: the several States are not prohibited from establishing religion.  Congress may not choose a particular religion as the official religion of the United States and compel anyone to adhere to it or support it or deny anyone who does not believe in it any liberty, but none of the three Branches of Government of the federal Union are prohibited from impartially tolerating, acknowledging or even promoting religion generally, let alone thanking God or at least acknowledging the Creator as the source of liberty.

            The Fourth Amendment does not require warrants for searches.  It requires only that persons, their homes, papers and goods be secure from unreasonable searches.  The Amendment also requires warrants be based on “probable cause.”  Note there is no express constitutional “right to privacy.”

The Thirteenth Amendment does not prohibit all slavery.  Slavery is permitted by it “as a punishment for crime.”  

The Fourteenth Amendment did not hold the several States bound to the “Bill of Rights” (the first ten Amendments) as a whole (i.e. the Bill of Rights are not specifically “incorporated”).  The Amendment prohibits the abridgement of the “privileges or immunities” of the United States, requires due process for the accused and the equal protection of the laws, but does not expressly require the several States to abide by all of the provisions of the Bill of Rights.  The “Privileges and Immunities” are referenced in Article IV, Section 2.  They mean the freedoms and rights, privileges and immunities guaranteed by the States’ Constitutions at the time of the passage of the federal Constitution, which generally included at least similar protections as in the federal Bill of Rights.

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