The Case against Case Law

Guest Column

By Geoff Broughton

Today when you hear the term Constitutional Scholar or Constitutional Expert you get the image of someone who has studied the Constitution and perhaps the Ratification Debates as well as the federalist papers.  Someone who has studied the philosophers whose opinions were crucial to how our nation was to be governed like Blackstone, Cicero and Montesquieu and understands the context the Constitution was written in.

You would be wrong, Constitutional Law as it is today is really Case Law and it has very little to do with what the text says and everything to do with reinventing that text to make it say what it needs to say to allow the expansion of the central government through the practice of precedents.

Those in power would say; all of you tea partiers with your pocket constitutions are out of line when you question the Federal Government because original intent is no longer important in Constitutional Case law.  Our society has progressed, and our understanding of the Constitution must progress with it.  It is a “living” document that must evolve with the times.

But remember, a “living” constitution is really a dead one, and a Government with no limits is tyranny.  Here is a warning from Thomas Jefferson in the Kentucky Resolutions of 1798 talking about the how the powers of the Federal Government were to be defined: the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers;

Case Law has set up a system where the final word on the power of the Federal Government is left to the Federal Government.  Instead of a Government of “We the People”, we have a central government that tells us how to live because we are not smart enough to do this for ourselves.  Has the time come where we start to take back our Country from the political class, and reclaim the ideals of Popular Sovereignty so we can pass that freedom to our Children?  I hope so.

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One Response to The Case against Case Law

  1. Dwight says:

    Let me guess–you’ve never studied the Constitution. The Constitution, by design, uses words like “unreasonable” and phrases like “due process,” neither of which is defined by the Constitution. This shows, without question, that the meaning of such terms was to evolve over time. The meaning would be determined by the Judiciary, which is appointed by our representatives, who are elected by us. We are responsible for how the Constitution is interpreted. If we want to define the terms in the Constitution, we are free to do so by amendment, a process that is outlined in the Constitution. Or, we elect folks who will appoint judges with whom we are likely to agree.

    I suggest you read the Constitution. You might find it interesting.

    If you disagree, please tell me why the 4th Amendment’s term “unreasonable” isn’t defined or the 5th Amendment’s term “due process” isn’t defined.

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