Our Constitution Means What It Says, and is not open to interpretation!

Written Constitutions mean exactly what the writers and ratifiers say they mean and nothing else in the form of this essay from MI Supreme Court Judge Thomas McIntyre Cooley.

Cooley's books on the subject is also posted here for purchase at amazon.com and for instant reading here at Google books.




A cardinal rule in dealing with written instruments is that they shall receive a unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a difference rule in the case seem desirable.

A principle share of the benefit expected from written constitutions would be lost if the rules they established were to be so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement.

Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course would become a precedent, these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity of bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments.

What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."





I have added a discussion between Mike Church and Dr. Kevin Gutzman shortly after obamas` 1st nomination of a female,latin supreme court judge.....

Mike: Dr. Kevin Gutzman on the line here. But he watched the hearings. So we’ll get the Doc’s take on this. How are you today, Kev?

Dr. Kevin Gutzman: I am very well, Mike. How are you?

Mike: I am fantastic. Did I miss anything? You watched the hearings, I suppose. I was on vacation. I didn’t. What did I miss?

Kevin: Well, what I was reminded of in thinking about her comments about the superior merits of the wise Latina judge, was an experience I had in law school at the University of Texas Law School 20 years ago now. We had class protests by Hispanic and black students and people who were sympathetic with them in which they demanded that there should be particular chairs in law, that is, professorships, set aside for black and Hispanic academics.

Mike: Okay.

Kevin: And the idea was that only a black or a Hispanic academic would have the knowledge of the world that a black or Hispanic academic would have, and that there could not be a first-class legal faculty without the particular insights, I suppose, of wise black and Latina or Latino academics. So not only was it not an offhand comment that Sotomayor was pilloried for, but it was also not anything peculiar to her. This is a very widely believed notion in legal academia, and that means also among lawyers that basically when it comes to judging, there are special insights of blacks and Hispanics that white men just don’t have. And so we need to have some kind of, at least what was being proposed at UT Law School, which is one of the top five public law schools in the country, what was being proposed was a quota system in hiring professors. And of course what we see now is essentially a quota system in appointing people to federal judgeships, and apparently to the Supreme Court.

Mike: It is nothing short of – I can’t even say it’s amazing anymore because it’s not amazing. It happens all the time. I mean, it is the daily grind of the “bidness,” would you say the energetic business of government? Isn’t that what the framers – isn’t that what the federalists that were framers called – said that we needed, Dr. Gutzman, we needed an energetic government? Could they have imagined that we would have one that was not only energetic but had been injected with about 5,000 gallons of Winstrol V steroids?

Kevin: Well, they certainly said there should be energy in the executive. I’m not sure that they ever imagined the wide-ranging law-making prerogative exercised by federal judges these days. But, yeah, that was an idea that was held by a lot of nationalists in the 1780s. I have to say that I thought that the proposal my classmates were making at UT Law School 20 years ago – this is the University of Texas at Austin Law School.

Mike: Right.

Kevin: This idea that there should be particular positions on the faculty set aside that only black or Hispanic academics could apply for, I thought this sounded very South African. And in fact, I...

Mike: [Laughing] You mean like apartheid?

Kevin: I thought it was precisely apartheid.

Mike: Okay, all right.

Kevin: And in fact at the time I was president of the UT chapter of the Federalist Society. And so we put up signs all over the law school saying that these should be referred to as the P. W. Botha chairs in law. And apparently we’re now going to have P. W. Botha chairs of, I don’t know, Supreme Court Justice.

Mike: I suppose, I mean, if you’re looking for a silver lining here, and I don’t think this is a silver lining, but just the fact that she replaced another incompetent nincompoop in Justice Souter, who famously decided the Kelo v. New London case, right down the road from where you are in Western Connecticut – right? That’s a Connecticut place; right?

Kevin: Well, yes. Actually, though, I think a lot of people are saying that. But I think it’s mistaken. It seems to me that, while Souter was pretty reliably going to come out in favor of upholding left-wing precedents, he was a pretty strong devotee of the idea of what’s called “stare decisis,” that is, that what the Court had done before should not be changed without some really good reason. And that’s actually not so left-wing a position as we might fear that Judge Sotomayor might follow. The idea of quotas for minorities and so on was not one that Souter endorsed. And so far as I can tell, Sotomayor supports it. So I actually think that Sotomayor is very likely to be worse than Souter.

Mike: Yeah, but she’d have to have four others to go along with her. Not to say that there won’t be because you have Kennedy. You have Darth Vader Ginsburg. Who is the other, John Paul Stevens. So that’s four right there.

Kevin: Right.

Mike: It doesn’t portend well. But I say it doesn’t portend well. The Supreme Court was never designed to have this authority anyways, was it?

Kevin: No, that’s exactly the problem. Ever since at least ‘87 when Bork was nominated we’ve paid more attention to nomination processes for the Supreme Court than we pay to any Senate race, as if the Supreme Court were the Supreme Legislature. And of course the reason for that is that the Supreme Court is the Supreme Legislature, and this is more important than any Senate race. So think about the attention that was given to this, and compare it to the attention that was given to the difficulty in deciding who had won the Minnesota Senate election this year, and you’ll see that it’s just orders of magnitude difference. The reason is Ms. Sotomayor is now more important than Al Franken. Maybe that’s a good thing, but...

Mike: You may not want to disparage that statement just too much. Dr. Kevin Gutzman, who’s got three books out. The paperback edition of “Who Killed the Constitution” is out now. You can get that at fine bookstores and at Amazon.com. And at KevinGutzman.com, “Virginia’s American Revolution” and “The Politically Incorrect Guide to the Constitution.”

We just had another guy who called, right before you were on, Kevin, and he was asking the constitutionality. And people call me for these things all the time, you may have heard him, of how can Obama sit there, or Congressman Rangel sit there and say that they have the sovereign authority to force or to compel me to buy something that I don’t want, namely health insurance, under the threat of a tax increase or a fine if I fail to do so. And of course the short snickety answer to that is, well, that they’re a national legislature now, do whatever the hell they want. The constitutional, if there was such a thing in effect, answer would be, well, they don’t have the authority. What would you have responded to that gentleman?
Kevin: Well, that’s precisely right. You know, one provision of the Constitution that left-wingers like to point to in support of their idea that we should say that there are rights to have abortions and engage in homosexual sodomy and all kinds of things that had always been not only not rights, but illegal before, is the Ninth Amendment. They want to say that the Ninth Amendment is a general protection of rights and that judges, federal judges should be able to invent new rights under the Ninth Amendment and force them against the states. I, of course, think that’s illegitimate.

Mike: Right.

Kevin: But on the other hand, the right to hire somebody to be your doctor and pay him the amount that the two of you have agreed to actually is a longstanding right of English-speaking people. And I think it’s something that does actually fall under the Ninth Amendment. So it seems to me that you could make a legitimate argument, and of course that means it’s one that wouldn’t be accepted by a federal court, you could make a legitimate historical argument that you have a Ninth Amendment right not to have Obama tell you who your doctor will be or how much you’ll pay him. But, you know, this is America, so we have arbitrary unlimited central government. And there’s really nothing you can do about it except try to vote out the congressmen who voted to impose this on you.

Mike: Right, and this is what I – one of the things that I find, well, it’s interesting to me and it’s interesting to you because we have read these things. Unfortunately, there’s 309,999,997 – I’ll include Dr. Woods in the people that have read the Ratification Debates in Virginia of the Constitution. This is exactly, this is happening according to prophecy, is it not? Isn’t this exactly what Patrick Henry and what William Grayson and what James Monroe – mainly Henry, though – said was going to happen? Aren’t we following the course?

Kevin: We could not be any closer to what he predicted. And, you know, anybody who thinks that we have constitutional government now should just compare the predictions that Patrick Henry made about the worst possible fruit of ratifying the Constitution...

Mike: Right.

Kevin: ...to what we actually live under. And what we actually live under is his worst-case scenario. We don’t call Obama the king, but other than that it’s about as bad as any of those people had nightmares it might be. That is, the central government feels free to tell you what to do in any sense at any time of your day, and it feels free to veto any policy of state government it doesn’t like, and the executive is free to make war anywhere he wants and force you to pay for it. Besides which, they feel free to put stay laws in effect and essentially transfer money from people who have loaned money in good faith to people who’ve decided they can’t pay. So, yeah, it’s an absolute failure.

Mike: Which is...

Kevin: The only question, I think the question it leaves is, is it just because of the American Constitution, is the federal constitution shortcomings that we’ve ended up in this situation? Or is this a general problem that is always going to inhere in written constitutions? Are written constitutions just ultimately bound to fail? Or is it because our own particular Constitution has led to this point that we have this problem we have now?

Mike: Well, how...

Kevin: I don’t know the answer to that. But I do know that I can’t think of a written constitution that has worked over a long period of time.

Mike: Well, I was going to ask you, our forefathers were very reverent towards the English Constitution; right?

Kevin: Right.

Mike: Or I guess the one that came out in – I’m going to get the date wrong, so you can correct me, 1678 or whatever it was.

Kevin: 1688.

Mike: 1688, okay. So how long did the English live under their vaunted – and it was a great charter at the time; was it not? How long did they live under their Constitution?

Kevin: Well, of course the English Constitution of 1688 was unwritten. And they would argue that they live under it now. But the problem that the people who made the American Revolution had encountered was essentially that the English had decided that it did not apply to colonists living in North America. That is, that while there was a right under the English Constitution to be represented in Parliament, that didn’t apply to people who were outside the mother country and so on.

Mike: Right.

Kevin: So the point is, written constitutions were supposed to be a way to provide a firm check on the tendency of people in office to grab at more power than the people had intended to give them. And that was not an idea that was part of the English Constitution. There was a general idea that Parliament was sovereign and could do basically whatever it wanted to do. Then the Americans decided to reject that by writing constitutions that say exactly what government officials could do. But again, what we have now is a situation in which, as that last caller was complaining about, there is no limit to what federal officials feel entitled to do to you. There’s no limit to what they feel entitled to do to foreign countries in your name. There’s no limit to what they feel free to impose on your state government. There’s just no limit. And that’s exactly and the only thing the written Constitution was supposed to do was provide limitation on the power of the government.

Mike: Well, that’s what it was supposed to do.

Kevin: Yeah, yeah.

Mike: And it did for a while. But, I mean, as you pointed out in your books, the usurpations began as soon as the gavel banged down the First Congress in 1790; didn’t it.

Kevin: I fear that they certainly began trying to grab more power almost instantly.