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April 03, 2017

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0Scalia

I find a satisfactory answer in the law of contracts. Abe Lincoln summarizes the concept effectively: "No man is good enough to govern another man, without the other’s consent,” Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854, and COTUS and the BoR, read in pari materia and interpreted in a transparent manner, is the absolute outer limit of our consent. Stripped of grandiosity, it is a simple contract creating an express and limited agency for the benefit of third-parties, and as in all contracts, the document is to be read strictly as against the drafting party.

Probably borrowing from Hobbes, Michael McConnell observed that when people enter into a society, they surrender a portion of their natural rights and assume certain obligations in exchange for a portfolio of "civil rights" or procedural protections, with the intention of securing those natural rights they retained. This, in turn, leads to a reliable way of reading COTUS: “The office of all judges is always to make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act." Heydon's Case [1584] 76 Eng. Rep. 637, 638 (K.B.). In other words, the "original public meaning" is presumptively defined by its intended purpose.

In one of his bench statements, Scalia asked the appropriate question: "Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?" https://s3.amazonaws.com/s3.documentcloud.org/documents/372493/scalia-statement.pdf If the answer is not just "No" but "Hell, no," it probably isn't the correct interpretation of COTUS.

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