Saturday, July 9, 2011

The King's Royal Deer

The idea behind the King's Royal Deer is that the King of England claimed all the deer in the land for himself, and hung anyone caught poaching those deer. But now we find that there is a form of the King's Deer here in America. In a free country, I as the owner of land, should be able to kill any deer I find on my property, including the three I caught munching on my tomatos, whenever I want. But I can not, you see, because the State in essence claims ownership of the deer, and I must beg for a licence to kill deer.

The analogy to the King's Royal Deer has application to many property rights issues, including to Obamacare and the King's Royal Deer by Jon N. Hall at the American Thinker today. In the 6th Circuit Court ruling recently, a now almost 70 year old case, Wickard vs. Filburn is cited more than 20 times to uphold the Constitutionality of ObamaCare. Here I must reiterate that under the doctrine of stare decis a bad ruling begets even worse rulings until some future ruling becomes wholly detached from the Constitution itself. It is like an historian who uses secondary sources to make his case. He may have gotten it mostly right, but got something just a little off. Now a future historian comes along, and uses the secondary source to claim that the primary source said something that in fact he never said. So it is with using stare decis to "interpret" the Constitution. It has, of course, been done deliberately over time by activist judges who didn't want to wait for the slow, grinding pace of convincing enough Americans to have the Constitution amended to take some of their own rights.

What?...Wait...There is a way to amend the Constitution? Who knew about this?

Well, all those activist judges, and lawyers, and politicians knew about it.  But as I said, the elite priesthood of the law couldn't wait long enough to convince a majority of Americans to go along with giving up their rights.  So, a little tweak here, and little tweak there.  Put some turgid, boring language around it, and voila, you have a new meaning for the Constitution that its framers never intended, and you have them saying something that they never said.

Sadly, we must watch the confirmation hearings of Federal judges just as much as we must stay on top of everything else.  We must insist that when interpreting the Constitution, judges and justices must return to the original document, the minutes of the Constitutional Convention, and especially the Federalist Papers.  Had they paid heed to the Federalist Papers, which I am sure they read at some point, they would have seen that the commerce clause and the general welfare clause (not the good 'n plenty clause as one congressman stated) should be read very circumspectly, as Madison warned, not expanded, as Wickard does.

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