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April 03, 2017


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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?" If the answer is not just "No" but "Hell, no," it probably isn't the correct interpretation of COTUS.

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