270

Last I checked, American Jurisprudence is neither referenced by the Constitution, nor were it’s writers also those of the Constitution. What is your obsession with non-Constitutional sources and opinion?

271

Come now, just come out of the closet and confirm you do not agree with abiding by the fundamental rules of constitutional construction.

JWK

The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)

272

Nope. The Constitution is often ambiguous and does not explicitly and exhaustively self-define itself. This is intentional. It gives a flexible framework to guide those currently using it. If that weren’t the case, you wouldn’t be posting quotes by chancellors, judges and 20th century law manuscripts to defend your interpretation.

273

, But your posts confirm you do not agree with abiding by the fundamental rules of constitutional construction. Why not simply say so?

You obviously support the novel thinking that the constitution is liken to a rubber ruler, to be stretched to mean whatever a majority on the S.C. thinks the Constitution should mean. Such a proposition, if true, begs the question: why have a written constitution?

Chief Justice Marshall eloquently addresses your notion as follows:

To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ___ Chief Justice Marshall, MARBURY v. MADISON, 5 U.S. 137 (1803)

JWK

"In matters of power let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution". …Jefferson

274

LOL. Around and around you go. Don’t interpret the Constitution. The Constitution isn’t a rubber stamp. The Constitution shouldn’t mean what the majority of the Supreme Court says it should mean.

Then you post a quote not from the Constitution, but a Supreme Court justice interpreting the Constitution in a majority opinion. LOL. The hypocrisy is delightful! Thank you!

275

Huh? Your above post makes absolutely no sense. We were talking about the fundamental rules of constitutional construction, rules which you apparently do not agree to abide by when determining what the Constitution means.

So tell me, our Constitution declares “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” How would a Justice determine what is considered to be a “direct tax” within the meaning of the Constitution, a tax which must be apportioned?

JWK

The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)

276

You’re mixing up your threads, but I’ll bite.

Capitation is expressly listed as a direct tax. “Other direct tax” is ambiguous and left up to the courts/legislature/people to decide. Traditionally a direct tax is a tax on personal property. The sixteenth amendment further defined rules of apportionment and expressly excluded income tax from apportionment.

All of that is well within the framework of the Constitution.

277

You never answered the question. The question was stated as follows:

So tell me, our Constitution declares “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” How would a Justice determine what is considered to be a “direct tax” within the meaning of the Constitution, a tax which must be apportioned*?

Since you have petulantly dismissed and rejected the age old and established fundamental rules which govern constitutional construction, and even dismissed the acknowledged rules of constitutional construction as stated by some of the most notable legal authorities, I simply asked you how a Justice is to determine what the constitution means, when a question arises as to its meaning.

Instead of answering the question and explaining how one determines what our constitution means, you continue with your deflections.

Why not simply come out of the closet and confirm you do not agree with abiding by the age old and acknowledged fundamental rules of constitutional construction, and then explain your chosen way of determining what our constitution means when a question arises as to its meaning?

JWK


"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story

278

A justice gives a ruling on legal/constitutional matters by the use of precedent and interpretation of laws in the context of current political and social climate. This is done within the expressed limitations of the Constitution.

What’s your fascination with coming out of the closet?

279

You still have not answered the question. The question was stated as follows:

So tell me, our Constitution declares “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” How would a Justice determine what is considered to be a “direct tax” within the meaning of the Constitution, a tax which must be apportioned?*

JWK

280

I have answered your question. Multiple times now.

Precedent and interpretation of laws in the context of current political and social climate. All within the expressed limitations of the Constitution.

281

You have offered an answer which does not elaborate on the question: How would a Justice determine what is considered to be a “direct tax” within the meaning of the Constitution, a tax which must be apportioned ?

Unlike your response which omits rules and procedures to arrive at an answer, let me recommend you review two Supreme Court cases in which a tax was challenged as being a direct tax: Flint v Stone Tracy Co_ ., 220 U.S. 107 (1911) and Eisner v . Macomber , 252 U.S. 189 (1920) The former decided before the adoption of the 16th Amendment and rejects a tax as being direct and requiring apportionment, the latter being decided after the 16th Amendment’s adoption and striking down the income tax as being direct and not being apportioned.

In each case the Court articulates fundamental principles and rules for deciding whether a tax is direct, and thus requiring an apportionment.

JWK

If, by calling a tax indirect when it is essentially direct, the rule of protection [apportionment] could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. POLLOCK v. FARMERS’ LOAN & TRUST CO., 157 U.S. 429 (1895)

282

A judge would decide based on the rules and procedures of the courts/legal system. I’m sure you could find a textbook.

Your cited cases are 100 years old and have been eclipsed.

283

Well, you are finally agreeing there are fundamental rules which govern constitutional construction, the most fundamental rule is stated as follows:

The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.— numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.

Additionally, the following is also found in the 1992 edition of American Jurisprudence:

6 Am Jur, Constitutional Law, “Rules of Construction, Generally”

Par. 88–Proceedings of conventions and debates.

Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted )

Also see par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

Also note that under the rules of constitutional construction
16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__

In reference to the old nonsense about changing times and the necessity of the Court to alter the meaning of the Constitution to accommodate changing times, our wise founders provided the Amendment process to keep up with changing times, a process involving, and requiring, the people’s consent as outlined in the amendment process.

JWK

Obamacare by consent of the governed, Article 5, our Constitution`s amendment process. Tyranny by a majority vote in Congress or a Supreme Court’s majority vote

284

More citations from a book written hundreds of years after the Constitution by private authors and released by a private publishing company. Telling us to look to the Constitution and original authors for guidance. The irony is not lost.

285

The “book” you cavalierly dismiss is American Jurisprudence 2d and is one of the most used references by lawyers.

But you certainly are a remarkable individual. First you ignore fundamental rules of constitutional construction, then you change your tune and declare we are to follow “the rules and procedures of the courts/legal system”, which happen to be found in Am. Jur. volumes, and then your go back to your original position and mock a prominent source which lays out the rules of our legal system.

:roll_eyes:

I imagine you will next be mocking the United States Senate for confirming the most fundamental rule of Constitutional Construction … adhering to legislative intent, which is also found in Am. Jur, Constitutional Construction.

JWK

“In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it…A construction which would give the phrase…a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution.”

Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967),

286

Finally. You’ve come full circle. You admit a “most used reference by lawyers” is a tool for us to interpret the Constitution. A reference completely separate from the Constitution itself. If an extra-Constitutional source is valid in the interpretation of the Constitution, any source could potentially be. Popularity or “most used” is of no merit.

Welcome to the modern view of Constitutional interpretation. Glad you’re here.

287

Those are your words and they do not reflect my thinking. Your latest evasive dodge is not very clever.

:roll_eyes:

JWK

288

Then give me a yes/no answer. Are there modern sources outside of the Constitution which are valid in guiding the interpretation and use of the Constitution?

289

:roll_eyes:

Your question is Irrelevant to the fundamental rules of Constitutional Construction.

JWK

Of course there is income inequality. Some of our citizens work at improving their station in life, while others expect the force and hand of government to give them income equality.