What they would do, would only apply to their pre-industrial and pastoral context, and it would be ridiculous to attempt to insert what they would have done then, into the context of our technological age now. It doesn't matter. We defame them even asking the question. After all, Common Sense says that the Founders are dead, their cities as they knew them, and the lives and lifestyles they knew are gone, and are irrelevant to our lives... what they would do does not matter and should not matter to us - they are dead and buried, hallowed be their names.
If you are looking to the Constitution as a portal to somehow determine what they would have done... I've got news for you... not only can't you do it, but it wouldn't matter if you did, they are dead and buried and cannot act in our world.
Have I got that point across? Good. So then maybe now I can add one great big...
But, what our Founding Fathers did pass on down to us, can be and is still fully living and breathing, through us (or at least it should be), and the Constitution is the vital and very solid guide which we have to it.
Note: the Constitution is not, repeat NOT a living breathing document, it was written down on paper, copied and distributed, so that it would remain permanent and unchanging unless specifically amended by We The People, so that it could be passed down from their time to ours and beyond... without the slightest hint of a breath, gasp or sneeze - but it is the Rosetta stone to the Founders still living philosophy of Classical Liberalism and Natural Law, and it shows us how to understand those ideas and how to apply them to our world, our lives and our context.
The real question we need to be asking is Why would they do what they did, what were the ideas which animated them and with which they wrote our constitution and how can we apply those same still living ideas, to our lives and context so that we can continue living in liberty and freedom?! That is the question we need to be asking.
Asking 'What would the Founders do?' is the type of thing that leads formidable minds such as Justice Robert Bork, to look at the constitution, shrug, and say such things as he did in his infamous confirmation hearings regarding the 9th and 10th amendments having no more value than an inkblot ,
"Senator DECONCINI. Yes. You feel that it only applies to their State constitutional rights., and good luck finding 'conservative' sites giving any mention of it... libertarian, left and whacko left sites are about the only ones to mention it - so much for "common sense" being able to conserve or defend the constitution. This is the very same 'conservative' view of Rights and States Rights which Justice Taney and the confederacy used to determine that some poeple could own other people as property. It is also the very same view which Taney expressed in the Charles River Bridge case I noted in a previous post, and which Daniel Webster lamented as being the "death of Property Rights", and it is one of the more frightening statements I've heard modern day conservatives make regarding our Rights, and what few of them have any standing with some of our 'legal scholars'. Thank God Bork's nomination was defeated. The Conservative who follows the constitution is all well and good, and far better than the leftist who obfuscates it, but if the conservative doesn't understand what the constitution means... he's going to do grevious damage to it as well.
Judge BORK. Senator, if anybody shows me historical evidence about what they meant, I would be delighted to do it. I just do not know.
Senator DECONCINI. I do not have any historical evidence. What I want to ask you is purely hypothetical, Judge. Do you think it is unconstitutional, in your judgment, for the Supreme Court to considera right that is not enumerated in the Constitution
Judge BORK. Well, no.
Senator DECONCINI. to be found under article IX?
Judge BORK. There are two parts to that. First, there are some rights that are not enumerated but are found because of the structure of the Constitution and government. That is fine with me. I mean that is a legitimate mode of constitutional analysis. I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
Senator DECONCINI. Let me ask you this question: If you had to speculate, what do you think Madison or some of the framers had in mind as to unenumerated rights?
Judge BORK. They might have had in mind—this is pure speculation, which I do not think is ...
Senator DECONCINI. I understand. I said this is all hypothetical.
Judge BORK. All right. They might have had in mind what I just said about the enumeration of these does not entitle judges to override the state constitutional rights. They also might have had in mind perhaps a fixed category of what they regarded as natural rights, although if they did have in mind a category of natural rights, I am a little surprised they did not spell it out and put it into the Constitution, because they specified all the other rights. There is no evidence that I know of that this was to be a dynamic category of rights, that is that under the ninth amendment the court was free to make up more Bill of Rights...."
Most of the conservative judges today, while I'll take them over the leftists, and with the oft exception of Justice Clarence Thomas (such as for his opinion at the end of this post, big kudos there), I for one can't say that I admire them. I certainly don't share Mark Levin's admiration for judges such as Robert Bork, and even with a much greater mind such as Justice Scalia, it seems that when trying to imagine "What Would the Founders Do?" in regards to our Individual Rights, they in essence shrug... and say "I don't know".
For instance, Scalia argued in Troxel v. Granville, that
"In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage."..."*BUT!*
"...Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right."
So while Scalia sees those non-enumerated rights as being valid for legislators to take into consideration when writing law, and rightly so, he goes on to say that if someone makes a law that clearly violates the unenumerated rights of parents or other forms of property rights - that's ok, it's a law now and it says so. This I think bears out much of Madison's fear, that enumerating some rights, will for a "debased posterity" (us), mean that any rights which are not enumerated, in effect, just don't exist.
They are disarmed. And disarmed by themselves... and what whatever it was that passed for their education deprived them of the intellectual ammo of people like Madison, who in introducing the first draft of our Bill of Rights to congress, said
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution."
, which referred to,
"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."
, which was an early draft of what became the Ninth Amendment,
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
, and it's closely related Tenth Amendment:,
"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."
If you try and just read the Constitution as a document, or attempt to see what some flat textbook level cutouts of the the Founders would have done, those two vital amendments would be a complete blank to you... because they didn't much directly use either one of them, by that I mean that neither amendment was much challenged in the Founders time, or in the generation which immediately followed them... they, the ideas behind them, and the real meaning and understanding of the Declaration of Independence, were too well known and understood to be seriously questioned. For instance, take a look at the House of Representatives deliberations on what would be the Second Amendment (Hellooo Mr. Bork...),
"Mr. Sedgwick ... what, said he, shall we secure the freedom of speech, and think it necessary, at the same time, to allow the right of assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutiae; he therefore moved to strike out "assemble and."
Mr. Benson.--The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.
Mr. Sedgwick replied, that if the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed."
Not until later generations, did we begin to question the peoples inherent and unalienable rights such as were once assumed 'self evident' and which the Ninth and Tenth amendments embody and assume, and it would be a couple generations further down the gene pool, as proregressive education, under the guidance of fiends such as Woodrow Wilson and John Dewey, took more and more root, that any of those challenges would stick.
But, if you learn the ideas with which they understood and lived by, and which they applied in writing and debating the Constitution, then you will come to understand that the 9th and 10th amendments are among the most vital of passages not only in the Constitution, but to our understanding of liberty and freedom, and their continuation in these United States.
For instance, look at the links here beneath the Ninth Amendment, look... and you'll find passages such as famed Supreme Court Justice Joseph Story's commentary on those 'ink blot' rights (Psst! Bork! Have a look!),
"This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty. ...
... One should suppose, if the history of the human mind did not furnish abundant proof to the contrary, that no reasonable man would contend for an interpretation founded neither in the letter, nor in the spirit of an instrument. Where is controversy to end, if we desert both the letter and the spirit? What is to become of constitutions of government, if they are to rest, not upon the plain import of their words, but upon conjectural enlargements and restrictions, to suit the temporary passions and interests of the day? Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people."
, and elsewhere, this regarding what all of our rights, defined and undefined, rest upon,
"since the American revolution no state government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property, should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power."
But such sensibilities are common sense only if those fundamental ideas and principles are common to the thoughts of those thinking them - as they were in the Founding Father's era. Today, however, thanks to proregressives like Oliver Wendel Holmes, and such 'philosophies' such as Textualism and Originalism, those once common sense ideas of our Founder's philosophies of Classical Liberalism and Natural Law , have been pushed from our national "Common Sense", and as a result our modern Supreme Court authorizes doing just what Justice Joseph Story was so sure could never happen here; as we see almost routinely now, in cases like Kelo vs. New London.
Reading Story's commentaries on the constitution, shows how much we have lost of our valuable Classical Liberalism and Natural Law... and attempting to read the constitution with only 'college sense' or 'common sense', conservative or otherwise, absent the ideas which created it... is doomed to failure.
There really is no getting around it... we must become again a nation which educates itself to be worthy and capable of liberty and self-governance - or lose both.
One way to make a good start at this, is through deeply reading The Constitution of the United States of America yourself, for it is the ciphers key which enables us to reconnect with and unlock the meaning of our native Classical Liberalism and Natural Law from within sources such as the Federalist Papers, John Locke, Blackstone, Montesquieu, Coke, Cicero... not only to discover what the Founders themselves thought... but more importantly, WHY they thought it!
Absent that, any pretences of 'Common Sense' are quite likely to lack any real sense of the meaning of the very Constitution we are seeking to conserve, and that should be considered uter nonsense.