Trump: I will appoint Justices “. . . who will uphold our laws and our Constitution."

Donald Trump has repeatedly told us he will appoint Justices “. . . who will uphold our laws and our Constitution.” So, if he means what he has stated, what exactly does this mean?


If we look at our Constitution [see Article 6] it actually commands judges and Justices to support “this Constitution.” Our Constitution also recognizes and commands [see Amendment 7] an adherence to “the rules of the common law”. In fact, these two provisions outline the primary function of our Supreme Court Justices which can be summarized as follows:


1. Abide by the text of the Constitution


2. Abide by the documented “legislative intent” of the Constitution which gives context to its text.


The irrefutable fact is, one of the long standing rules under the common law with regard to the meaning of laws is to enforce “legislative intent”. In a newspaper article published in the Alexandria Gazette, July 2, 1819, Chief Justice Marshall asserted he could "cite from [the common law] the most complete evidence that the intention is the most sacred rule of interpretation."


It should also be pointed out that the notable Justice Story, in his Commentaries on the Constitution of the United States (1833) wrote: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties."


And let us not forget that our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903), confirms the historical validity of enforcing legislative intent is a priority of the Court:


”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :


"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."


This very rule concerning legislative intent is also stated by Jefferson in the following words:


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.


And the noteworthy Chancellor James Kent, in his Commentaries on American Law, 1858 confirms the truth of the matter as follows:


"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.


In fact, being obedient to the documented legislative intent of our Constitution was acknowledged in HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)


”The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.”


It should also be noted our Supreme Court cited the Federalist Papers 18 times in order to discover the intent of our Constitution in order to enforce, see UNITED STATES v. LOPEZ, (1995).


The simple truth is, when questioning nominees for our Supreme Court, one of the most important questions to ask the nominee is ___which seems to never be asked is ___ “How would you determine what our Constitution means?” Of course, those who have actually studied Constitutional Construction and English Common Law ought to remember what is stated in American Jurisprudence:


The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers. Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.


The bottom line is, if Donald Trump is true to his word, he will nominate judges and Justices who will pledge to adhere to the text of our Constitution and its documented legislative intent which gives context to its text, and will not use their office of public trust to impose their personal sense of “fairness, reasonableness, or justice”.


JWK



"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968