My Response to Mr. Woodard Part II

Mr. Woodard,

I have several comments about your general Constitutional theory, but I will first address each of your statements individually. Your points are in bold and quotation marks.

“The Preamble to the BOR is just that, a preamble and as such has no basis other than a guideline. And we both know, for decades, successive governments don’t even bother with guidelines except when it is to their case or agenda. Another abuse of a “Preamble” is Article 1 § 8 Clause 1.”

A preamble is an introductory clause, yes, and as such outlines what the said document will do. The Preamble to the U.S. Constitution details that the powers delegated to the government in the following document will provide for the common defense and general welfare, establish justice, ensure domestic tranquility and secure the blessings of liberty to them and their descendants. The Preamble to the Bill of Rights, as I explained in my first rebuttal, does the same thing. Just because a preamble is ignored or embellished—James Madison chastised those who did so late in his life—does not change the nature or intent of the introductory clauses, as Madison called them. We know what the Bill of Rights is supposed to accomplish because it explicitly states it in the preamble. To simply shrug that off by stating that “governments don’t even both with guidelines” is a fallacy in logic. And your last statement is confusing and leads me to believe that you don’t understand the nature of a preamble. The “General Welfare Clause” which you refer to is NOT a preamble. It was lifted directly from the Articles of Confederation by Roger Sherman and carries the same meaning it had in that document. I discuss this in detail in my Founding Fathers Guide to the Constitution.

“Your interpretation of the BOR Preamble, as far as it goes, is correct. But if you are going to use that as a validation for the 2nd Amendment not being ALREADY incorporated to the states, the same criteria MUST be applied to all the other Amendments. I don’t see anyone saying that the 1st Amendment wasn’t already incorporated to the States, or any other Amendments, outside the 2nd.”

Did you not read my original rebuttal? I already addressed this. Why would James Madison (the man who condensed the two hundred or so proposed amendments into 12) insist on an incorporation amendment if he believed the Bill of Rights was incorporated into the States? Why did three States—New Hampshire, Connecticut, and Massachusetts, have State established churches AFTER they ratified the Bill of Rights if they believed that the First Amendment applied to the States? Why did Nathaniel Macon of North Carolina—a member of the founding generation—declare in 1798 that a Sedition Law at the federal level was unconstitutional because of the First Amendment but the States could pass one if they chose (of course Jefferson and Madison said the same thing when they wrote the VA and KY Resolutions)? Why did Pennsylvania have restrictions on firearm possession after they ratified the Bill of Rights if they believed the 2nd Amendment applied to the States? In fact, the founding generation had no problem with the States regulating firearms. They did not want the general government to have exclusive power over the purse and sword. I also discuss this in detail in my book. Do you need more proof that the BOR was never intended to be incorporated into the State constitutions? Most important, Madison’s incorporation amendment was rejected unanimously because the States did not want the BOR applied to their constitutions.

“The DOMA is unconstitutional. We agree on that for reasons already stated. So, if the DOMA is unconstitutional, using the same logic constitutionally, all firearm laws are unconstitutional as well. Since firearm legislation is NOT granted Congress under ANY of the Enumerated Powers,(Article 1 § 8, [including the Preamble Clause 1]) Congress has no authority to legislate firearms. They have only done so mostly via the abuse of the Commerce Clause. As an additional restriction, we also have the 2nd Amendment.”

I agree, at the federal level. All federal “gun control” legislation is unconstitutional. They can’t even regulate class 3 weapons, tanks, fighter planes, attack helicopters, or any other explosive devices. The States, however, can. The 2nd Amendment was security against Article 1, Section 8, Clauses 15-16, which received substantial debate in Philadelphia and in the State Ratifying Conventions, but it was there to check ONLY the general government, not the States, because the States did not want to forfeit all control over “arming” the militia, meaning providing the weapons. The fear was that the general government with this power could refuse to arm the militia thus rendering them impotent. I also detail this debate in my book.

“Also, since the 2nd Amendment, as you say, was never intended to be incorporated to the states, then once again, the same criteria, as far as all the amendments, must apply to the states. Therefore, the 10th Amendment, along with most of the others is null and void. We both know that is not the case.”

No, the 2nd and the 10th are different animals and understanding the history of the 10th is more important than any other part of the Constitution and the Bill of Rights. The 10th Amendment was typically FIRST of the proposed amendments coming out of the States, and the driving force behind it was a desire to restrict the powers of the general government through what Patrick Henry called the “sweeping clauses,” i.e. the “General Welfare Clause,” “Necessary and Proper Clause,” and “Supremacy Clause.” Madison deceptively and ingeniously placed it last as a way to mitigate its importance. An amendment that outlines that all powers not delegated to the general government by the Constitution are reserved to the States and the people cannot be incorporated into the States. It is there to protect the States from the general government and declare that only the enumerated powers are available for the general government to use, no more. It is the hedge AGAINST the “supremacy clause” that you like to trumpet. By stating that the BOR is not incorporated into the States does not make them “null and void.” I cannot understand your logic here. It makes them applicable to the general government ONLY, or in the case of the 10th where it implicitly refers to Article 1, Section 10, to the States. Again, if the rest of the Bill of Rights was supposed to apply to the States, then that language in the 10th would have been unnecessary.

“So we are left with the Constitution is the SUPREME LAW OF THE LAND.

Marriage, in any form, via the Constitution, it left to the States via the 10th Amendment.

Firearm laws are forbidden to both Federal and State(s). For the States, via the 2nd Amendment.”

Yes and no. The Constitution is supreme in its delegated and enumerated powers. Only laws made “in pursuance” of the Constitution are supreme. All others, as Alexander Hamilton and other proponents of the document said, are null and void. This statement is the most troubling of your positions and shows a lack of understanding about the Constitution as ratified in 1787 and 1788. To put this gently, your basic understanding of the Constitution needs some work and I would suggest several months of reading in The Documentary History of the Ratification of the Constitution. They are about $50 a volume but the volumes on VA, NY, MA and the commentaries are well worth the cash. If you are going to write about the Constitution, you should be better versed in its history and original meaning. It is, after all, a historical document written and ratified in time and place. The “clauses” were not created in a vacuum and cannot be understood without context from the participants at both the Philadelphia Convention in 1787 and the State ratifying Conventions of 1787-1790. As Madison wrote, and I paraphrase, the ratifying conventions gave the Constitution its life and “vitality.”

I will leave you with this. Your general theory of the Constitution is the antithesis of how the PROPONENTS of the document said it would be interpreted and falls in line with the how the OPPONENTS of the Constitution FEARED it would be wielded against the States. Had your argument been accepted by the ratifying conventions in 1787 and 1788 the Constitution would never have been ratified. James Wilson, Alexander Hamilton, John Rutledge, Edmund Randolph, James Madison, Oliver Ellsworth, William Richardson Davie, James Iredell, all PROPONENTS of the Constitution, would disagree with you, and the OPPONENTS of the document would declare they were right. “See, people DO think the Constitution makes the States mere provinces of the general government.” If you don’t believe me and won’t read my book, then read the debates of the ratifying conventions yourself. It would be worth your time and energy.


Comments are closed.