The Bill of Rights does not constrain future amendments in any way, I am sure the nobody at the time thought the States were diminishing their rights to make changes by passing the amendments. The Preamble actually says the States "expressed a desire" to limit the central government, not that such limitations should be eternal and beyond their control.
The paper actually discusses the issue without any question of the fact that the present Constitution has no limit on further amendments. It is precisely this lack of fundamental, inviolable, principles which makes an oath to uphold the Constitution questionable. If the Constitution were written in an unnatural, mathematical language as suggested, certainly we could know more exactly what it says. However, the common voter would have even more difficulty understanding what it says at all. The problems in the US relate to general widespread ignorance and deliberate deceit, not to some lack of intellectual understanding. Harland Harrison LP of San Mateo County CA ----- Message d'origine ---- De : terry12622000 <[email protected]> À : [email protected] Envoyé le : Dim 14 Février 2010, 6 h 47 min 51 s Objet : [Libertarian] Re: Is oath to uphold Constitution honorable? I think it is honarble when you take into account that the bill of rights with its preamble makes null and void most of the post war between the states amendments largely because they violate the 10th amendment. The preamble to the bill of rights informs us are restrictive clauses on the constitution to prevent misconstruction or abuse of its power. The restrictive nature of the first 10 amendmends would not only apply to the pre bill of rights constitution but would also prvent any post bill of rights amendments from conflicting with any of the first 10 amenments. Thus the 13th,14th, 15th, 16th, 17th amendments are unconstitutional. The 18th was unconstitutional. The 19th,24th and the 26th would be unconstitutional. of course states should outlaw slavery which they do anyway, they should be required to have due process of law and equal protection of the law, minorities, women and people 18 and over should be allowed to vote but the federal government has no legal authority to force 1 or more states to do does things. --- In [email protected], Jon Roland <jon.rol...@...> wrote: > > > Is oath to uphold Constitution honorable? > > <http://constitutionalism.blogspot.com/2010/02/is-oath-to-uphold-constitution.html> > > The question has been raised, essentially, "Is it honorable to take an > oath to support a constitution, not only in its present state, but > however it may be amended according to its amendment clause?" In the > case of the U.S. Constitution, Article V textually and logically allows > even for amendment of itself, such as to remove the restriction that the > Constitution may not be amended to allow for unequal representation in > the Senate, which is a continuing source of irritation to majoritarians > who think, mistakenly, that the highest political value is to be > "democratic" and that contramajoritarian provisions of a constitution > are inconsistent with that value. > > This is a variant on a well-known problem in mathematical logic, > discussed in terms of "recursion", "self-referentiation", and > "non-terminating processes". It is discussed by Peter Suber in "The > Paradox of Self-Amendment in American Constitutional Law > <http://constitution.org/lrev/psuber/paradox_self-amendment.htm>",/Stanford > Literature Review/, 7, 1-2 (Spring-Fall 1990) 53-78. > > But to understand it, we first have to ask, "What is a constitution"? > One way to approach the answer is to ask, "If a constitution of > government is accurately translated into another language, so that a > person adhering to it would make the same decisions, is the translation > the same constitution, or a different one?" > > The most productive way to answer the second question is to say that it > is the same constitution. That is, it is the meanings, not the > language-bound text, that is the real constitution. The text is only > evidence of that constitution, just as a copy of it would be. > > If it is meanings, then how might we represent them that is rigorous and > not bound to any particular natural language? The answer, with some > simplification, is that they translate into a system of /deontic/ > <http://www.constitution.org/logic/ked.pdf> statements, in a normative > extension of the first order predicate calculus (FOPC), that express a > set of constraints on human behavior in the polity for which it is the > constitution. > > We will establish it as a premise that to be a constitution, it has to > constrain human behavior in a way that is nontrivial, and that enables > people to cooperate in protecting their fundamental rights. > > If there are no constraints on how a constitution may be amended, then a > commitment to a constitution in all the ways it could be amended would > contradict this premise, because it would be a commitment not to a set > of constraints, but to an unconstrained process that could terminate > only if the amendment clause were effectively deleted, and that could > morph into something that would not be a constitution at all. > > Therefore, the amendment process must be constrained, if not by its own > terms, then by principles of sound constitutional design that are > superior to any written constitution of government. One way to conceive > of these constraints is to posit that there are superior constitutions > of nature, society, and the state, that form a hierarchy of authority, > superior to the written constitution of government. These concepts are > discussed in "Social Contract and Constitutional Republics > <http://constitution.org/soclcont.htm>". > > This leads to the question, "Is the Constitution for the United States > constitutional?" That is, is it compliant with these superior > constitutions of nature, society, and the state? The answer is yes, if > we examine the language of the document and look for ways it can be > reasonably construed that are compliant. Such a construction exists, so > an oath to it understood in that way would be an honorable act. We can > recognize that the language contains ambiguities that temporized on > violations of fundamental constitutional principles for a time after > ratification. Tolerating violative practices is not a flaw in the > Constitution itself, only in the application of it. We can say that the > Constitution used to be unconstitutional as applied, in certain ways, > but may no longer be, in those ways. However, it may be in other ways. > One takes an oath, however, to the constitution and not to practices. > > So to answer the original question, one can only honorably take an oath > to a constitution and its amendments that remain constrained by the > superior unwritten constitutions of nature, society, and the state, > which contain the underlying principles of sound constitutional design. > > Interestingly, with the practice of binding /stare decisis/ we have a > practice that is fundamentally inconsistent with the Constitution, and > any constitution. A commitment to the present Constitution, properly > construed, is not dishonorable. But a commitment to binding /stare > decisis/ is, in all the ways that have given rise to the initial question. > > As for being "democratic", if that is understood as a political order in > which majorities can always decide in support of any positive public > action, then that is in essential conflict with our constraint that the > constitution protect fundamental rights. It is one thing to prevent > positive action without majority consent, but quite another thing to > enable positive action with only majority support. In a well-designed > democratic system, majority support should be /necessary/, but not > /sufficient/, for positive public action, and structures and procedures > that enable minorities or even individuals to block action are not only > sound design, but necessary. > > -- Jon > > ------------------------------------------------------------------- > Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757 > 512/299-5001 www.constitution.org jon.rol...@... > ------------------------------------------------------------------- > > > > [Non-text portions of this message have been removed] > ------------------------------------ ForumWebSiteAt http://groups.yahoo.com/group/Libertarian Yahoo! Groups Links
