Today someone posted a clip from the Senate hearings to confirm (or not) Neil Gorsuch to the Supreme Court. Senator Sasse of Nebraska set him up for this "negative" document thing.
So I had to respond:
I'm fine with most of this except that the Constitution is not a "negative" document:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution. . . "That's a POSITIVE charge and clear intent without having to go digging in the Federalist Papers or letters of the Founders to psychoanalyze what their intent was or make up what "compound constitutional republic" means. Yes, the checks and balances and separation of powers are vital. But even the enumerated powers have general and sometimes specific "necessary and proper" clauses. Also, the war power is still undefined and Congress has failed to reign in Presidents. The Constitution is a living and vital document that does not codify all law and end all debate. It provides a structure for debate, the very nature of a bicameral legislature, vetoes, overrides, judicial review, and all the checks and balances. I do not accept a constitution that froze in time in 1789. It incorporates the common law (even references it) and judicial interpretation and executive regulation, including adjudication, subject to court challenge and authorized by Congress. At least Gorsuch recognizes Indian Tribal sovereignty. The Constitution lives. It is not "negative" but a charge and responsibility of We the People to govern ourselves through process.
And I am concerned about conservative or Republican Justices as has been pointed out this week that they seem to favor the strong and wealthy over the weak and unpopular and especially corporate power (a creation of the state) over the rights of humans (a creation of God).
Yes, I am a proud Liberal for a living Constitution. And that's why we still have much work to do for a More Perfect Union.
If I've said it once (which I have), I'll keep saying it for a thousand more times.
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