Recently, in the comboxes of The Other Blog, there appeared this interesting exchange:
James: “Ron Paul is seen as a crank and extreme because he wants to put us back under the Constitution.”
JonF: “Ron Paul would put us under his own idiosyncratic concept of the Constitution.”
The statement by “James” echoes a sentiment I’ve seen elsewhere, i.e., that a vote for Ron Paul is somehow a vote to support “the Constitution.” JonF’s view echoes my own: Ron Paul’s view of the Constitution isn’t the only one out there. For example:
- Targeting Killing of U.S. Citizens: Paul answered “None” when the New York Times queried, “Under what circumstances, if any, would the Constitution permit the president to authorize the targeted killing of a United States citizen who has not been sentenced to death by a court?” However, as John Dehn as noted, under Supreme Court decisions like the Prize Cases and Hamdi v. Rumsfeld, “lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war,” even “without a prior adjudication of guilt . . . .” If the Civil War was constitutional, then it’s difficult for me to see why killing Au-Aulaqi wasn’t.
- Fiat Money: In “End the Fed,” Paul asserts, “Constitution is clear about no paper money. Only gold and silver were to be legal tender.”[1] However, as Robert Natelson has noted, the original meaning of the Coinage Clause did indeed allow for paper money.[2]
- Abortion & the Courts: Paul supports “effectively repealing Roe v. Wade . . . by removing abortion from federal court jurisdiction . . . .” However, as Maggie McKinley argues, the Fourteenth Amendment may have implicitly limited Congress’s Article III power to limit Supreme Court appellate jurisdiction.[3] On a similar note, Steven Calabresi & Gary Lawson contend that the original meaning of the pre-Fourteenth Amendment Constitution inherently limits jurisdiction-stripping.[4]
Note, I am not arguing that any of the aforementioned scholars are infallibly correct. I am only noting that Paul’s views regarding the Constitution aren’t the only ones out there; and that reasonable people may disagree about the various constitutional positions he advocates. One can support adherence to “the Constitution,” and still oppose Ron Paul’s take on it.
[1] Ron Paul, End the Fed 165 (2009).
[2] See generally Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017 (2008), available at http://constitution.i2i.org/files/2010/09/Coinage-Clause.pdf.
[3] See generally Maggie McKinley, Note, Plenary No Longer: How the Fourteenth Amendment “Amended” Congressional Jurisdiction-Stripping Power, 63 Stanford L. Rev. 1213 (2011), available at .
[4] See generally Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum L. Rev. 1002 (2007), available at .
Liked the Natelson paper a lot. I have seen Paul make this reference about coinage several times and kept meaning to chase it down. I think it also points out the artificiality of the texters and original meaning folks when it ocmes to interpreting the Constitution.
Steve
the artificiality of the texters and original meaning folks when it ocmes to interpreting the Constitution.
I’m disinclined to question the sincerity of other scholars absent clear & convincing evidence of their mercenary tendencies. Malice vs. incompetence, etc.
The best way to look at the original intent of the constitution is to read the work of the founding fathers outside of the constitution. When you read those, and compare it to the text you can easily ascertain the meaning of each section of the constitution.
Writings, speeches, etc., by those who authored the Constitution may shed some light on original meaning. However, a thorough study of a provision’s original meaning should also include (at the very least) attention to the drafting records of the Philadelphia Convention of 1787, and those from state ratification debates of 1787-88. (For amendments, the equivalent would be congressional debates surrounding drafting, and state & public debates between the amendment’s congressional passage & the final state ratification.) Evidence of prior & contemporaneous usage (e.g., dictionaries, court decisions) may also be relevant. Ditto judicial decisions & legal commentaries from the period soon after ratification. Whether or not gathering & evaluating all of the above is “easy” depends, I suppose, on the amount of time & interest one is willing to devote to the endeavor.