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‘Original Intent’: Safeguard for the Supreme Court – Part 2

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Once our independence was in motion, the mechanisms to end slavery were in motion. Roger Sherman, a delegate from Connecticut, remarked in the federal convention on 22 August 1787, “that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it.”  Oliver Elsworth, also a representative to Connecticut, very confidently stated in 1787, “Slavery in time will not be a speck on our country. Provision is already made in Connecticut for abolishing it.   And the abolition has already taken place in Massachusetts.”

The notes taken during the ratification of the Constitution prove that the majority of the drafters of the Constitution were vehemently opposed to slavery and sought a way to end the practice immediately. Justice James Iredell stated in the debates held in North Carolina, “It was the wish of a great majority of the Convention to put an end [to slavery] immediately…”

The unfortunate truth was that slavery, having been forced on the colonies from infancy, had created a cultural apathy in some sectors and economic dependency in others. The drafters held that in order to create a Union, which could end the institution of slavery, there had to be an agreement – rightly or wrongly – to gradually wean society from this despicable addiction.

In 1788, James Madison explains this serious dilemma:

“Great as the evil [slavery] is, a dismemberment of the Union would be worse. If those States should be disunited from the other States for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.”

Madison continued to make the point that if these States were to gain this foreign aid, the institution of slavery may never be abandoned by those States and there would be nothing to stop those States from bringing discord or even war to their neighboring States over the dissolution of slavery. In hindsight, some would say that such an outcome was inevitable in either case.

The documented Original Intent of the drafters is a complete contradiction to the opinions and precedents of the Dred Scott Court.  This supreme Court claimed the Constitution declared black men property. James Madison, the father of the Constitution, states the exact opposite:

“[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.”

This Dred Scott Court claims that black men were never to be considered free citizens by the drafters of the Constitution. Future supreme Court Chief Justice John Jay, co-author of the Federalist Papers, founder of the African Free School contradicts the court’s assertion:

“It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”

In 1810, James Madison even made this demand of our Congress in the future, based upon the Original Intent of the drafters of the Constitution:

“American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country. The same just and benevolent motives which produced interdiction in force against this criminal conduct will doubtless be felt by Congress in devising further means of suppressing the evil.”

When Congress passed the legislation to end the traffic of slavery [in 1807], Thomas Jefferson made this statement:

“I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violation of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.”

Remaining bound to errant precedent, established by Supreme Court justices, simply because legal tradition says so, truly enslaves all Americans to the whims and motives of nine individuals in a quasi-oligarchical rule.

A return to Original Intent is a return to the principles that have made America the desire of so many of those in foreign countries for hundreds of years. A return to Original Intent declares that Liberty is the right of all human beings and their government is established to protect those rights, not regulate them. 

A return to Original Intent is an undeniable application of Liberty and Justice for all. A return to Original Intent says that we are able to be free individuals by choice, not permanent slaves by authoritarian stranglehold of government.

We hold these truths to be self-evident that all men are Created equal and endowed by their Creator with certain inalienable rights…”

When they penned and signed their pledge to these words, they meant it just as it was written. In fact, Jefferson’s original draft was even more pointed in its anti-slave stance. They could have very well written “all free-men or white men are Created equal” but they did not. They were declaring that this Creator they reference made ALL MEN (gender neutral application) in His image and that through this creation all are inherently free. Even as some of these men struggled to extricate themselves from the dominant feature of their time (Jefferson most notably), they knew that the seed of liberty they sowed in their day would grow and that future generations would be able to fully realize the drafters’ dream of Liberty and Justice FOR ALL.

This is what Original Intent means.  This is why Original Intent should be viewed as a safeguard for all people.

KrisAnne Hall is an attorney, former prosecutor, a disabled Army veteran, a Russian linguist, a mother, a pastor’s wife and a patriot. Hall hosts weekly radio and TV programs and teaches an average of 265 classes each year on the Constitution and the Bill of Rights. Learn more at krisannehall.com.

The Language of Liberty series is a collaborative effort of the Center for Self Governance (CSG) Administrative Team. CSG is a non-profit, non-partisan educational organization, dedicated to training citizens in applied civics. The authors include administrative staff, selected students, and guest columnists. The views expressed by the authors are their own and may not reflect the views of CSG. Contact them at CenterForSelfGovernance.com

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