Thursday, December 15, 2011

The Monticello Statement

By Thomas Jefferson (paragraph by paragraph)
Collected and arranged by Karl Born, December 15, 2011

We hold these truths to be sacred & undeniable:
That all Men are created equal & independent;
That from that equal creation they derive in rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness;
That to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed;
That whenever any form of government shall becomes destructive of these ends, it is the right of the people to alter or abolish it, & to institute new government, laying its foundation on such principles, & organizing its powers in such form, as to them shall seem most likely to effect their safety & happiness.
Prudence, indeed, will dictate that governments long established should not be changed for light & transient causes; and, accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed; but when a long train of abuses & usurpations, pursuing invariably the same object, evinces a design to subject them to arbitrary power, it is their right, it is their duty, to throw off such government, & to provide new guards for their future security.
We consider society as one of the natural wants with which man has been created;
That he has been endowed with faculties and qualities to effect its satisfaction by concurrence of others having the same want;
That when, by the exercise of these faculties, he has procured a state of society, it is one of his acquisitions which he has a right to regulate and control, jointly indeed with all those who have concurred in the procurement, whom he cannot exclude from its use or direction more than they him.
That morality, compassion, generosity, are innate elements of the human constitution;
That there exists a right independent of force;
That a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings;
That no one has a right to obstruct another, exercising his faculties innocently for the relief of sensibilities made a part of his nature;
That justice is the fundamental law of society;
That the majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society; [and]
That action by the citizens in person, in affairs within their reach and competence, and in all others by representatives, chosen immediately, and removable by themselves, constitutes the essence of a republic.
No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him: every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him: and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right.
If we are made in some degree for others, yet in a greater, are we made for ourselves. It were contrary to feeling and, indeed, ridiculous to suppose that a man had less right in himself than one of his neighbors, or indeed, all of them put together. This would be slavery, and not that liberty which the bill of rights has made inviolable, and for the preservation of which our government has been charged. Nothing could so completely divest us of that liberty as the establishment of the opinion, that the State has a perpetual right to the services of all its members. This, to men of certain ways of thinking, would be to annihilate the blessing of existence, and to contradict the Giver of life, who gave it for happiness and not for wretchedness. And certainly, to such it were better that they had never been born.
The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.

Wednesday, December 14, 2011

Jefferson on the Right to Liberty

A portion of the following, from a letter from Thomas Jefferson to James Madison in 1782, is one of the best statements that I have ever seen of the rationale behind the right to freedom.


"... never been born." (That was the end of his sentence.)

The particular portion of this that I thought was important was this: "If we are made in some degree for others, yet in a greater, are we made for ourselves. It were contrary to feeling and, indeed, ridiculous to suppose that a man had less right in himself than one of his neighbors, or indeed, all of them put together. This would be slavery, and not that liberty which the bill of rights has made inviolable, and for the preservation of which our government has been charged. Nothing could so completely divest us of that liberty as the establishment of the opinion, that the State has a perpetual right to the services of all its members. This, to men of certain ways of thinking, would be to annihilate the blessing of existence, and to contradict the Giver of life, who gave it for happiness and not for wretchedness. And certainly, to such it were better that they had never been born."

Friday, December 2, 2011

Certain Modern American Rules of Interpretation


Although these have nothing to do with the formation or meaning of the Constitution, I thought it might be worthwhile to note how statutes are interpreted by the U.S. Supreme Court.  Here are some of the leading rules (of which some are closely related):

1. The ultimate objective is to give effect to the intent of Congress.

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

2. Begin with the text of the statute.

As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999).

3. Unless a term is defined in the text, it is to be given its ordinary meaning.

The statute could not be clearer in its use of the term ‘before,’ and since the statute does not define or limit the term ‘before,’ we presume Congress intended to give that term its ordinary meaning.Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995).

4. Where the statute seems to be unambiguous, judicial inquiry is complete, except for in the event of an extraordinary showing of a contrary congressional intention.

While we now turn to the legislative history as an additional tool of analysis, we do so with the recognition that only the most extraordinary showing of contrary intentions from those data would justify a limitation on the ‘plain meaning’ of the statutory language. When we find the terms of a statute unambiguous, judicial inquiry is complete, except in ‘rare and exceptional circumstances.’Garcia v. United States, 469 U.S. 70 (1984).

5. Give effect to every clause of a statute, rather than to emasculate an entire section—United States v. Menasche, Dole v. United Steelworkers of America

“’The cardinal principle of statutory construction is to save and not to destroy.’ Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30. It is our duty ‘to give effect, if possible, to every clause and word of a statute," Montclair v. Ramsdell, 107 U. S. 147, 152, rather than to emasculate an entire section, as the Government's interpretation requires.United States v. Menasche, 348 U.S. 528 (1955).

6. It isn’t just a member of a sentence that is important; it is the policy to be achieved—Dole v. United Steelworkers of America

Over and over we have stressed that ‘[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’” United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455 (1993).

In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.The United States v. Boisdore’s Heirs, 49 U.S. 113, 122 (1850).

7. Amendments are meant to have a real and substantial effect—Stanley v. Department of Justice, 423 F.3d 1271, 1274 (Fed. 2005).

When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.Stone v. INS, 514 U.S. 386, 397 (1995).

8. Congress is presumed to know existing law so far as it is relevant to its enactment.

We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988).

9. Redundancy.

The statute admits a reasonable construction which gives effect to all of its provisions. In these circumstances we will not adopt a strained reading which renders one part a mere redundancy.Jarecke v. G.D. Searle and Company, 367 U.S. 303, 308 (1961).