Constitution Day: A Time to Mourn Its Death and Look Forward to Its Resurrection

Sep 18, 2020 by David Fowler

Constitution Day: A Time to Mourn Its Death and Look Forward to Its Resurrection
Yesterday marked the 233rd birthday of a document signed into law on September 17, 1787, officially known as the U.S. Constitution. However, in putting the finishing touches on a new book I’ve written, I realized that even as Nietzsche said “God is dead. . . . And we have killed him,” the same could be said of the 1787 Constitution. The United States Supreme Court, with our help, killed that Constitution. But the framers planted a seed for its resurrection if we will just tend and cultivate it.
The book, soon to be published, will be entitled The Ninth Amendment—A Constitutional Tool for Challenging the United States Supreme Court’s Pretension to Power Over the People. 
The text itself is not that long, but in reading the materials and legal authorities contained in the 425 footnotes that cover 42 single-spaced pages, I realized that the frame of government outlined in the Constitution would be unrecognizable to the people of the United States, including the justices on the Supreme Court, that lived between its ratification and the adoption of the 15th Amendment in 1870. 
The 15th Amendment was the last of the three post-Civil War amendments. It made clear the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” But it was the 14th Amendment that became the tool by which the Supreme Court infringed on our fundamental rights and reframed our form of government.

The Constitutional Amendment the Supreme Court Used to Kill the Original Constitution.

I am not saying that the 14th Amendment was a mistake or should not have been adopted. But what I realized in writing the book was that the Supreme Court, over the last 50 years, has too often disconnected its words and phrases from “real law.” Undoubtedly that sounds strange, because we think of the Constitution as law, even the “supreme law of the land,” but it was only a particular type of law that was based on what I’ll call “real law.”  
The Constitution is that particular type of law students of the law would call “positive law.” It is law that is written down or prescribed by a particular kind of person, usually a legislator. In the case of constitutions and constitutional amendment the people are, even today, considered the legislative body. Positive law or the Constitution is what I’ll call “enumerated” law for reasons that will become apparent by the end.

But the positive law was based on a law that was found outside of us, the existence of which we, collectively, came to see, understand, and live by over an extended period of time. This kind of law, what I’ve referred to as “real law,” was called common law. 

Why “Real Law” Is So Important to the Constitution and 14thAmendment.

This “real law” or common law is important because every state in the Union, other than Louisiana, is a common law state.  

Here, then, is why the common law is so significant: 

When you don’t understand the nature of common law—the principles on which it is based and that it embodies—then you simply cannot rightly understand the Constitution or what our representatives are supposed to do.

Why is this so? Because, as even the Supreme Court has said, the Constitution and statutes are simply enumerations of, or attempts to reduce to writing, key particulars of the common law.

How the Supreme Court Ignored “Real Law” to Change the Constitution.

Here is just one example that I mention in the book. I explain it more thoroughly there, but in sum: The Court changed the original meaning of the words “person,” “life,” and “liberty” in the 14th Amendment’s Due Process clause.

Each of these words had a well-understood common law or “real law” meaning at the time the 14th Amendment was adopted. A “person” was any natural person who possessed life, even an unborn person. “Life” was natural life, which is why the common law considered the unborn part of the genus of “persons.” “Liberty” was the right to move from one place to another. Under “real law” these rights did not contradict one another. 

But in Roe v. Wade, the Supreme Court intentionally ignored the common law definition of the word liberty. It said liberty entailed the right for one natural person—a physician—to take the life of another natural person—an unborn child—if the killing was approved by the victim’s mother. But that misconstruction required others. 

The Court had to ignore what the word “person” meant at common law and make it mean only persons who were actually born. But it also had to deal with the word “life.” On this one, the Court simply feigned ignorance on what “life” was. It got itself tangled up in the word’s metaphysical and theological meanings as if it didn’t have a straightforward biological meaning.

Right then, the Roe majority should have been impeached for its ignorance of and disregard for “real law” and its relationship to the Constitution. That we didn’t demand it, and our representatives in Congress didn’t do it, makes those who were then of voting age complicit in the Court’s actions.

How The Supreme Court’s Change Undermined the Original Constitution.

As a result of the foregoing, the Court undermined the original Constitution in two fundamental ways.

First, it infringed on the common law right to life belonging to every natural person in a state. Second, it effectively attempted to pre-empt the powers the people had reserved to their states via the Tenth Amendment to secure that right. 

Roe v. Wade, rightly understood, is about far more than killing unborn babies. It is about the people of a state being able to assert and secure the right that every natural person in that state already had, prior to the positive law of the Constitution, to life, liberty, and property.

Again, the Roe majority should have been impeached. Sadly, ever since, we and our representatives have failed to directly challenge the Court’s obvious misconstruction of the Constitution’s positive law by its disregard of the “real law” on which it was based. Again, we are complicit in the Constitution’s death.

Sadly, ever since, we and our representatives have failed to directly challenge the Court’s obvious misconstruction of the Constitution’s positive law by its disregard of the “real law” on which it was based. Again, we are complicit in the Constitution’s death.

What’s the “Resurrection Seed” Planted in the Constitution?

That seed is the Ninth Amendment. It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 

In other words, the fundamental rights of life, liberty, and property belonging to the people do not come from the positive law of the constitution. Rather, those rights are based on a “real law” that lies outside the Constitution and predates the Constitution—the law the people themselves have recognized and lived by over the centuries. Therefore, according to the Ninth Amendment, the people’s fundamental, pre-political rights are not to be denied or disparaged through the federal government’s misconstruction of the people’s intent in trying to enumerate them.

If you want to know more or want to know how the people and their representatives can nourish this seed, you’ll need to get the book. But 34 Tennessee legislators and I will be taking the first step by the end of September. Stay tuned.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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