Words have meaning. Words have effect. In a legal environment words affixed to documents such as contracts adhere to these maxims. If words were included that either had no effect or the meaning of the words could change after the contact was signed, who in their right mind would agree to such conditions. Imagine if the terms of your mortgage contract could be modified, without your agreement or knowledge, after you signed the contract. If your contract stipulated the principle loan amount, the interest rate, and the repayment schedule and you agreed to those terms did you agree to a change in those terms as well? If your repayment term was 30 years and after signing the contract the lender says you now have to repay the loan in 10 years, or instead of a 4% interest rate your interest rate is now 12% would you have agreed to those conditions?
In agreements between parties not only do words have meaning those words have a fixed meaning. Additionally, words in a contract where parties are obligated to act in a certain manner, abide by certain conditions, the words must have effect. Words on paper that have no effect on the purpose of the document are merely surplus.
The Constitution is a written agreement amongst the parties that defines the structure of the federal government and defines the powers delegated by the parties to the federal government. The drafters of the Constitution were those men gathered at the Philadelphia convention in 1787. What they produced was merely a proposal for a system of government. An unsigned contract has no effect on the parties until those agreeing to the terms sign. Likewise, the Constitution prepared by the drafters had no effect until the parties ratified it.
The parties to the written agreement are the people of each free and independent state; acting voluntarily and without coercion from any outside influence. The people of the State of Virginia could not influence or coerce the people of New Jersey to ratify the Constitution (i.e. sign the contract) and vice versa. Therefore, the people at each of the State (independent from every other state) sent their delegates to State ratifying conventions to either ratify or reject the Constitution.
When it comes to understanding the written agreement amongst the parties to the Constitution we must always look to the state ratifying conventions first when trying to interpret and apply the Constitution. This is the basis for originalism when it comes to constitutional construction. Relying on another person completely disconnected from the signing of the agreement is akin to asking your third cousin their understanding of the terms of the mortgage contract you signed.
Words affixed to a constitution must have a fixed meaning, otherwise the understanding of the terms, conditions, framework, and powers delegated cannot be properly ascertained. For instance, what one word best describes the following; happiness, success, and prosperity? At the time the constitution was ratified the 1785 Samuel Johnson dictionary defines the word welfare as happiness, success, and prosperity. The general welfare was a term used in both the Articles of Confederation and the Constitution and was a restriction upon powers delegated to the general government under both Constitutions. If the definition of the word welfare changed to include government benefits provided to some member of society the “general welfare clause” meaning also changes. Therefore, the meaning of the Constitution and the powers delegated also change.
It is unreasonable to expect those ratifying the Constitution to expose themselves to such clever manipulations of language and meaning. To presume the words and meaning could change 50, 100, 200 years in the future without an amendment is to admit the words are without known meaning or effect. Which means the Constitution itself is without meaning or effect. Today, through clever manipulations the Constitution has been reduced to whatever modern day, politically connected lawyers clothed in black robes decide it means.
Consequently, this leads to further destruction of original understanding. Once the meaning of words arbitrarily evolve or change over time, according to whomever happens to be wearing the black robes at the time, it renders large chunks of the Constitution meaningless. There are words that have no effect as a result.
For instance, the meaning of welfare changing from its original understanding at the time of ratification to today’s plenary grant of power renders the entirety of the powers delegated in Article I Section VIII meaningless and of no effect. If the meaning of the introduction to Section VIII is changed as described the 18 or so powers delegated in the section are redundant as they are encompassed by the introductory words.
Likewise, at the time of ratification the word commerce had a very well understood meaning that was supported by hundreds of years of English law and the Merchant Law (commerce) was a specific branch of English law. The term commerce was never understood at the time of ratification to mean all economic activity. That definition was posited by academics in the 1930s and shortly thereafter the Supreme Court used this new found meaning of the word commerce in their judicial decisions. Naturally, the new meaning completely changed the scope of the commerce powers delegated under the Constitution.
A maxim of construction declares when two possible interpretations exist if one were to give the words effect and the other to render the words meaningless and inapplicable then the former construction applies. If words have effect then the interpretation must ensure those words are actually effectual. Any interpretation rendering one or more sections or paragraphs ineffectual is wrong.
If the living, breathing approach to the Constitution were applied to all contracts and other legal documents and proceedings we would be operating under a pseudo-common law system. Though laws are written the laws are put into effect by the interpretation of the judiciary rather than the intent of the law passed by the legislature. Under the Constitution laws are made by the legislative branch not by the judicial branch. Apply this theory to testimony provided in person or through an affidavit. If your sworn testimony has meaning and effect it must be the meaning and effect you give to it. But, if your testimony can be treated as “living and breathing” and lawyers can decide the meaning of your words on your behalf then your testimony is, for all intents and purposes, meaningless and left to the preferences and penumbras of lawyers.
To be found guilty of committing a crime a person must be convicted unanimously by twelve people. Even the most trivial crimes require a trial by jury and a unanimous decision. The Constitution is the highest law of the land and it is often times left in the hands of one person. A Supreme Court ruling split 5-4 means one person has ruled, on behalf of 310 million people, what the Constitution means. Why do statutory laws require unanimous decisions while the Constitution – the highest law in the land – is decided by one person?
Moreover, the Constitution itself is superior to the federal government. All three branches are subordinate to the Constitution. The judicial branch ruling on all things constitutional eliminates its subordinate function in the framework of the Constitution and elevates the judiciary above the Constitution itself. It is nonsensical considering the framework in which the Constitution was instituted.
The purpose of a written constitution is to have written law and the Constitution itself is the supreme law of the land. For any law to have effect the words must have a fixed meaning and the words must have effect. Whenever, those elected as our agents, fiduciaries, and public trustees do not abide by the Constitution – law superior to all other man made law – they create lawlessness. And, lawlessness begets lawlessness. Naturally, why should the people abide by any statutory laws – laws inferior to the Constitution – if those at all levels of government do not abide by the superior laws the people established to constrain elected officials?
The Constitution has been perverted to the point that everything is reduced to a legal issue decided by one black robed lawyer appointed to protect the prevailing orthodoxy according to their own prescriptive policy preferences and penumbras which ignores the maxim that words have a fixed meaning and words have effect.