Ambiguous Language in the Constitution

[Mick Jagger]

It has been said that the meaning of the Constitution is clear and obvious. However, this appears not to be the case.

Presented below is an argument between Patrick Henry and James Madison and John Marshall, during the Virginia Ratifying Convention, over the meaning of the word "controversies" in the provision Of the United States Constitution that grants the Federal courts jurisdiction over controversies between a state and citizens of another state.

Madison and Marshall interpret the word “controversies” to include only those disputes where a State is the plaintiff, whereas Henry interprets the word to mean controversies where a state is either a plaintiff or a defendant.

Who was correctly interpreting the Constitution, James Madison and John Marshall or Patrick Henry?

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution [Elliot's Debates, Volume 3]

Friday, June 20, 1788.

[The 1st and 2d sections of the 3d article still under consideration.]

Mr. MADISON.

Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts. It is a case which cannot often happen, and if it should be found improper, it will be altered. But it may be attended with good effects. This may be illustrated by other cases. It is provided, that citizens of different states may be carried to the federal courts.

Mr. HENRY.

As to controversies between a state and the citizens of another state, his construction of it is to me perfectly incomprehensible. He says it will seldom happen that a state has such demands on individuals. There is nothing to warrant such an assertion. But he says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. What says the honorable gentleman? The contrary--that the state can only be plaintiff. When the state is debtor, there is no reciprocity. It seems to me that gentlemen may put what construction they please on it. What! is justice to be done to one party, and not to the other? If gentlemen take this liberty now, what will they not do when our rights and liberties are in their power? He said it was necessary to provide a tribunal when the case happened, though it would happen but seldom. The power is necessary, because New York could not, before the war, collect money from Connecticut! The state judiciaries are so degraded that they cannot be trusted. This is a dangerous power which is thus instituted. For what? For things which will seldom happen; and yet,: because there is a possibility that the strong, energetic government may want it, it shall be produced and thrown in the general scale of power. I confess I think it dangerous. Is it not the first time, among civilized mankind, that there was a tribunal to try disputes between the aggregate society

Mr. JOHN MARSHALL.

With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which;the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power Should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant--if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular state, is it to be presumed that, on application to its legislature, he will not obtain satisfaction? But how could a state recover any claim from a citizen of another state, without the establishment of these tribunals?

[Mr. Mxyzptlk]

Quote by: Mick Jagger It has been said that the meaning of the Constitution is clear and obvious. However, this appears not to be the case.

Kind of like the clear and obvious fact that the 13the Amendment didn’t abolish slavery?
]
13th. Amendment
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

[SoylentGreen]

Mr. MADISON.
It is not in the power of individuals to call any state into court.

Disagree strongly.

Mr. JOHN MARSHALL.

He must be the guy drinking 8 to 10 matini's.

Mr. HENRY

What! is justice to be done to one party, and not to the other?

I agree.

[Dadoo]

I know I am a broken record, but don't be fooled.
This vaguery is completely intentional and obviously as such, genius.
Why should a Constitution be amendable? What huge changes were foreseen that would warrant such a perception?
Fallibility of language is inherent. Our laws grow ever-more complex every year. The ramifications are obvious.
The Constitution could have been very general and very straightforward, yet it is not.
"Ooops! we did it again, sorry!" they will say, agaian and again...
And we the sheeple will forgive our shepards, out of fear.
Again.

[Shade]

Patrick Henry was right. It says "controversies," not "controversies wherein the state shall be a plaintiff," like Madison claims. And Marshall is just nuts. He says, "I hope that no gentleman will think that a state will be called at the bar of the federal court." Duh! That's exactly what the Constitution says. And this guy was Chief Justice.

Freedom lovers never had a chance with these numskulls.

Dadoo is right: the US Constitution may have been better than other similar documents, but it is still a flawed document.

And thanks to Mick Jagger for posting this. The more you learn about that era, the more you learn that most of those guys were not really fighting for freedom as much as they were fighting for non-British government control.

There were a few exceptions, Patrick Henry being among them.

[Dan_77]

Quote by: Mr. Mxyzptlk Kind of like the clear and obvious fact that the 13the Amendment didn’t abolish slavery? ] 13th. Amendment to the U.S. Constitution Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

What? It seems pretty obvious to me that it does.

[Dadoo]

Quote by: Shade Freedom lovers never had a chance with these numskulls. Dadoo is right: the US Constitution may have been better than other similar documents, but it is still a flawed document. And thanks to Mick Jagger for posting this. The more you learn about that era, the more you learn that most of those guys were not really fighting for freedom as much as they were fighting for non-British government control. There were a few exceptions, Patrick Henry being among them.

Thanks for the nod, shade. I too realize some trickery afoot, and prefer to discourse with you all, rather than espouse strong feelings on the street.
One extra little point I'd offer is this:
The British threw the fight. I am originally from Saratoga Springs, NY and have been regaled a million times about the so-called "revolution".
We made a deal. The root of this tree is obviated with historical animosity and subsequent "documents" we seem to hold so high as we ignore the very principles... which BTW, is the fruit we have here today.
Britain and USA arm in arm, finally taking Bagdad, aka Babylon aka Ur of Chaldea, and snubbing their noses at the UN, which they created.
The British sovereignty, whether for dramatic effect or a change of heart did burn the Capital city in the war of 18 whatever.
Essentially if Britain really wanted US out, they would have simply won the war. A long-term plan, howeveer was set into perpetual motion by the purposeful placement of faulty bricks and relying upon the extremely short memory of humanity at large.
Yes, some history books don't have the true tale, but it looks good on paper.
Whew, small point? Under the ruse of righteousness which is in turn simple avarice.
So hard to describe, but plausible, as we are one empire with Britain, rejoicing in the spoils of another long awaited overthrow. Yum. Go Crusaders!
An ode to my sweet and free:


She's blushing skin, fair
while bombs burst in air
She brushes her hair
by rocket's red glare.

We love you, Mama America! We miss you very much.
Dadoo

[Shade]

Quote by: Dadoo The British threw the fight.

Do you have any more info (not necessarily links, but just a few points you could raise, as you see it)? I'm not saying I agree, but it wouldn't surprise me much.

I think what happened is you had two main groups. One was originally led by Thomas Paine when he published "Common Sense." He was basically an anarchist ("government is evil"). He championed the idea that man has rights and is free. Others joined him, even if not as "radical" as he was, such as Thomas Jefferson.

Then, you had the statists -- men who believed in government (even monarchy and dictatorship), but saw an opportunity to take power from the British king and get it for themselves. This movement was led by Alexander Hamilton.

It was the classic battle of liberty vs. tyranny. It's just that the would-be tyrants (Hamilton) didn't want someone *else* (the king) to be their tyrant. They wanted that for their own insiders.

Of course, this sort of thing cannot be taught in government schools. Instead, government schools teach the principles of Hamilton while using the language of Paine and Jefferson.

Anyway ... any other thoughts?

[Mick Jagger]

...the proem in the Second Amendment...was fully explained by the SCOTUS

We don't need the Constitution explained, dude. We need it honestly interpreted by applying the well established common law rules of construction the lawmakers, according to the historical evidence, most probably wanted applied to the Constitution.

Two of those well established common law rules of construction were invoked, by the great James Madison in Federalist No. 40 to, interpret "the act from Annapolis" and "that from Congress, in February, 1787" recommending what became the historic general convention that framed the U. S. Constitution.

The two rules of construction invoked by Madison date back to the time of Sir Edward Coke (1 February 1552 – 3 September 1634) and held that,

The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

When interpreting the Second Amendment, every word it contains ought to be allowed some meaning and made to conspire with the goal of a free state. What meaning should be given to the words in the first clause of the Amendment in order that they act together with the words of the second clause to achieve the goal of a free state?

[suijurisfreeman]

Why was the 'Constitutional Convention' of 1787 held behind locks doors? Were those delegates who attended said convention in the summer of 1787 authorized by their respective States to write a new constitution? Or were they only authorized to amend The Articles of Confederation?

Perhaps Patrick Henry did indeed smell a rat!

[Dan_77]

Quote by: suijurisfreeman Why was the 'Constitutional Convention' of 1787 held behind locks doors? Were those delegates who attended said convention in the summer of 1787 authorized by their respective States to write a new constitution? Or were they only authorized to amend The Articles of Confederation? Perhaps Patrick Henry did indeed smell a rat!

What difference does it make? They were authorized to make major changes, and the changes they DID make (writing the Constitution) were subsequently approved by every state legislature.

Are you seriously suggesting we should have stuck with the Articles?

[Charlatan]

So the issue is whether the state can be 'prosecuted' by the people? By making a law that protects the individuals inside a government body, you have to remember that the people inside the government body are just people, so making a claim against a person inside the body is like making a claim against a person. If you prosecute a body, say it is the department of labour, then it is the same as prosecuting a department store's management. It would make it possible though for lots of people to bottleneck the system by making lots of claims, say if one person can make one claim, the same claim can be made by thousands - millions of other people, so that would cause a mess. By saying that the many may not prsecute the elite is a way of making sure this disater never happens, but it obscures justice. If someone lays a charge against a law or a decision then they are fighting for their rights, but their rights have been decided by a vote and are meant to be good for the people, so how can a law that makes life good for the majority - which is the hallmark of democracy - and be bad for the few be called into court? If a law has been deemed bad for the majority people march and petition the state so as to see themselves heard, which is the usual way that justice ensues. After that they decide what will be best for the people and put it into practice.

When it comes to one person calling the state into court about an issue where they have been hard done by and there is nobody to call in but the state, then what must happen? The state must be called in because it is responsible for the well being of people within certain criteria, and makes actions for the people, and anything that is put into action was a decision, and all decisions have to help the people. So if a decision was put into action where the people were not helped, infact harmed, then it is the fault of the state, right? I mean who else could have done it? The 'suspect' should be the state, or a body within it, or an individual within that, that has made a clerical decision that has thwarted 'justice', and they should be prosecuted. If the person that made the decision is gone, then it needs to be rectified by the new person, failing to do so is a fault - as they are supposed to know their laws - of their own as the body answers to them, or the decision should have been reversed by them for the betterment of the state.

So you can call a person to bear with regards the laws and decisions they make, as the laws and decisions may not be just harming the individual. Any harm done unto the person must be answerable by something or other, and any human decision born by a victim must be anwerable by someone or other. It is not charging the state, it is charging the decisions and laws of the individuals within it. To have your members above the law is criminal, as then they can do whatever they vote for without forseeing the harm they might cause, and that is short sighted.

[suijurisfreeman]

Quote by: tivodan1116 What difference does it make? They were authorized to make major changes, and the changes they DID make (writing the Constitution) were subsequently approved by every state legislature. Are you seriously suggesting we should have stuck with the Articles?

What difference does it make? If the delegates to the 'Constitutional Convention' weren't authorized by their respective States to do anything other than revise The Articles of Confederation then by what lawful authority was the Constitution of 1787 written?
Why were the doors locked? Why were the delegates not allowed to take any notes about the day's proceedings home with them at night? Why were the delegates required to take an oath not to discuss the subject of the convention's proceedings with the public?

[Dan_77]

Quote by: suijurisfreeman What difference does it make? If the delegates to the 'Constitutional Convention' weren't authorized by their respective States to do anything other than revise The Articles of Confederation then by what lawful authority was the Constitution of 1787 written?

No surprise, you completely missed the point.

You don't need lawful authority to write a Constitution.

You can write one. I can write one. The guy who bags your groceries can write one.

What matters is getting someone to accept it as a lawful Constitution governing them. Since all 13 states' legislatures did that, your argument is moot.

Why were the doors locked? Why were the delegates not allowed to take any notes about the day's proceedings home with them at night? Why were the delegates required to take an oath not to discuss the subject of the convention's proceedings with the public?

Who cares? As I explained, every state's legislature approved the final document. If something was objectionable to them they would not have approved it. I really don't see where you're going with this argument other than some crazy conspiracy theory nonsense.

[suijurisfreeman]

Quote by: tivodan1116 No surprise, you completely missed the point. You don't need lawful authority to write a Constitution. You can write one. I can write one. The guy who bags your groceries can write one. What matters is getting someone to accept it as a lawful Constitution governing them. Since all 13 states' legislatures did that, your argument is moot. Who cares? As I explained, every state's legislature approved the final document. If something was objectionable to them they would not have approved it. I really don't see where you're going with this argument other than some crazy conspiracy theory nonsense.

If what matters is getting someone to accept it as a lawful Constitution governing them how has each American accepted it as a lawful Constitution governing them?
Since the Constitution was written in 1787 how have Americans 'accepted it as a lawful Constitution governing them'?

I guess what I'm asking is what makes one a party to the Constitution?

[Dan_77]

Quote by: suijurisfreeman If what matters is getting someone to accept it as a lawful Constitution governing them how has each American accepted it as a lawful Constitution governing them? Since the Constitution was written in 1787 how have Americans 'accepted it as a lawful Constitution governing them'? I guess what I'm asking is what makes one a party to the Constitution?

::sigh:: as I've explained many times before on this site: You accept the benefits of a contract, you are subject to that contract. It is called implied contract acceptance, and I can illustrate it with part of a question I remember from the bar exam:

Your neighbor contracts to have a pool dug at his house. The contractors show up and start digging - in your yard. You realize it would be nice to have a pool, so instead of telling them to stop, you let them finish. They come to your door and ask for payment and you laugh, yelling "wrong yard, suckers!" as you slam the door in your face. They sue you.

Guess what? You're liable for the value of the work they did. Knowing the situation, you accepted the benefits of their work, binding you to the reasonable burdens of the contract.

The fact that you don't understand the concept (and your sig tells me you don't) does not make it any less true. You accept the benefits of living in the United States, so you have an obligation to the burdens of our system that provides you with so many benefits.

Fortunately, our system allows you to advocate for change in what those benefits are, should you disagree with them.

The contract of implied contract acceptance predates the United States by at least a hundred years and is followed in every western system of laws (I'd say every system but I'm unfamiliar with eastern nations' legal systems). There's really nothing to argue about - it's fact.

[suijurisfreeman]

Rather than hi-jack Mick Jagger's thread any further I've moved this discussion over to my thread: What is the basis for governance in the United States?

[Mick Jagger]

Whatever may have been the intention of the framers of a constitution, or of a law. that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

--Alexander Hamilton on whether the Constitution grants Congress power to establish a national bank

[Mick Jagger]

...every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end.

The first clause of the Second Amendment must be made to act in harmony with its second clause toward the object of the security of a free state. The "right of the people" must be made to harmonize with "a well regulated militia being necessary for the security of a state."

For those two clauses to harmonize, either, the word "people" has to mean "a well regulated militia", or "a well regulated militia" has to mean "the people."

The statement, "people is necessary for the security of a free state", just sounds silly. However, the statement, "the right of the people in a well regulated militia to keep and bear arms shall not be infringed" sounds much better, don't you think?

[Mick Jagger]

The Second Amendment is extremely ambiguous. Especial when the rules of construction require that,

...every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end...where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

-- James Madison; Federalist No. 40

In Federalists No. 40, James Madison wrested with the problem that the goal of achieving a NATIONAL and ADEQUATE GOVERNMENT couldn't be achieved by means of mere ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION. The means was insufficient to achieve the goal. Therefore, Madison sacrificed the means to the more important goal and expanded the means enough to achieve the goal.

In the case of the Second Amendment, the means to achieving the goal of "a well regulated militia" - "the right of the people to keep and bear arms" -, exceeds, rather than falls short of providing, a means to achieving "a well regulated militia."

The issue is whether the means to achieving "a well regulated militia" should be scaled back, in the name of public safety, to what is necessary to achieve "a well regulated militia."