THE MAGNA CARTA APPROACH TO CONSTITUTIONAL INTERPRETATION

THE MAGNA CARTA APPROACH
to
CONSTITUTIONAL INTERPRETATION

or the

SEARCH
for
EXPLICIT CONSTITUTIONAL RIGHTS

The BILL of RIGHTS

LIBERTY'S SHIELD
or
THE CHINK in LIBERTY'S ARMOUR

Magna Charta was a grant of rights from the sovereign to the barons and thus by extension to the people. The document was written continuously like any deed of conveyance and enumerated restrictions on the government and the rights granted to the Barons.
All rights, powers and privileges not granted were retained by the sovereign. Any person wishing to ascertain their rights could do so by consulting Magna Carta.
Magna Carta, obtained from King John by the barons with sword in hand, was a bill of rights, not a constitution. Bills of rights are stipulations between kings and their subjects and enumerate rights granted to the people.
The Constitution of the United States, however, is the exact opposite of Magna Carta. The High Contracting Parties to the Constitution are the People of the United States.
The states are bound by the Constitution but are not Parties thereto. McCulloch v. Maryland 4 Wheaton 316(1819)
The principal adopted in drafting the Constitution was to enumerate the responsibilities, duties and obligations of the Federal Government and to grant the necessary powers to carry out the obligations imposed. All Federal Laws are passed pursuant to the defined powers.
The Constitution limits and defines the powers of the government. All powers not granted are retained by the people. Marbury v. Madison l Cranch 137 ( l819)
"WE, THE PEOPLE........., do ordain and establish this Constitution..........". The Constitution was created by the people, for the sole purpose of establishing a government with limited power over themselves. The government is the servant of the people not vise versa. The power of the government is limited to the power necessary to accomplish the duties imposed by Art I sec 8 of the Constitution.
The Constitution is the highest law of the land but is not the repository of Sovereignty. Sovereignty does not lie in abeyance and does not lie with the president, congress or the courts. Therefore Sovereignty must lie in the people collectively. The Constitution is the creature of the collective will of the people.
Government proceeds directly from the people. McCulloch v. Maryland 4 Wheaton 316 (18l9)
Hamilton had a little trouble with this concept and once asked: If the people be rulers who shall be ruled?
The existence of rights not enumerated is explicitly referred to in Art IX and Art X.
Art IX The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Art X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people.
Hamilton addressed the issue of a Bill of Rights in The FEDERALIST PAPERS #84: Here the People surrender nothing, and as they retain everything they have no need of particular reservations. For why declare that things shall not be done which there is no power to do. Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed.
Hamilton denied that a Bill of Rights would confer regulating power on the government but argued that tyrants and usurpers would use the very existence of a Bill of Rights as a pretense for claiming the power to regulate and define the limits of rights enumerated and to deny the existence of rights not enumerated.
All of Hamilton's fears have come to Pass. We have Supreme Court Justices searching, in vain, for the rights of the people in the Constitution. They diligently comb the articles for penumbrae and invisible radiation. We have bureaucrats importuning the courts to define the rights of the people as narrowly as possible in order to erode the liberties for which so much blood has been shed or else searching for ways to get around the Constitutional Question.

RICHARD E. IRBY, JR.

ARTICLE I Sec. 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States but all duties, imposts and excises shall be uniform throughout the United States.
To borrow money on the credit of the United States
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes:
To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures
To provide for the punishment of counterfeiting the securities and current coin of the United States
To establish post-offices and post-roads
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries:
To constitute tribunals inferior to the supreme court:
To define and punish piracies and felonies committed on the high seas and offenses against the law of nations:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:
To provide and maintain a navy:
To make rules for the government and regulation of the land and naval forces:
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:
To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance by Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings: And,
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

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