A Jurisprudence of Original Intent?

For those interested in the issue of originalism, I've started a new thread in the Legal Forum: A Jurisprudence of Original Intent?.

Richard Posner wrote:

"Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforseen changes, but it also creates the possibility of alternative intepretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated from its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requres a consideration of consequences. If I say, "I'll eat my hat, "one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly, or, "Read me narrowly" THE DECISION TO DO ONE OR THE OTHER MUST BE MADE AS A MATTER OF POLITICAL THEORY AND WILL DEPEND ON SUCH THINGS AS ONE'S VIEW OF THE SPRINGS OF JUDICIAL LEGITIMACY AND THE RELATIVE COMPETENCE OF COURTS AND LEGISLATURES IN DEALING WITH PARTICULAR TYPES OF ISSUE>"

I agree.

Firstly, a point about legitimacy. The constitution is law, and the citizens of the United States ought to be conscience-bound to obey it, because a democratically elected Congress enacted it. What got enacted into law at the time was the original understanding of the bill enacted, so this is the understanding that ought to bind the citizens litigating, and the judges deciding cases. Every later interpretation lacks this legitimacy to the extent it departs from that original meaning. It does not matter, at least not to the legitimacy argument, what other virtues the reinterpretations of modern judges may have.

The second important argument for originalism is grounded in the same reason I am a (small-d) democrat: I abhor dense concentrations of power among groups unaccountable to the people. They frustrate the whole concept of self-governance, which I hold dear. To plagiarize Thomas Jefferson, if your (and Posner's) philosophy of interpretation was enacted, that would in practice allow the US Supreme Court to interpret into the US constitution whatever good things it finds appropriate. And since the court would be the supreme judge of good and evil, you would also allow it to interpret into the US constitution whatever evil things it finds appropriate.

Joe, you may feel comfortable vesting such great discretionary power in such a small group of unaccountable people. I do not. If we have to give a small group of unaccountable people that much power, I at least want to chain them to some reasonably narrow rules.

I doubt that many "originalists" would think that the Eighth Amendment, which prohibits cruel and unusual punishments, would permit a state to execute "sodomites," even though some of the states that ratified the Bill of Rights had such statutes on their books at the time (South Carolina maintained its law until 1873).

And no doubt most people -- even, I dare say, most originalists -- would hesitate before approving the whipping of convicted criminals, even though that too was permissible in some of the states at the time of the adoption of the Eighth Amendment.

Our views regarding these constitutional concepts mature over time, and must accomodate societal changes.

Remember, even Antonin Scalia thinks that the "freedom of the press" mentioned in the First Amendment covers television and radio.

So what would you do, Thomas, if you were a supreme court justice and you were confronted with a case which tested the constitutionality of a law passed by congress prohibiting television networks from broadcasting anything negative about the government?

According to an original intent analysis, wouldn't you have to side with the government because the framers of the First Amendment did not "intend" to include television under the term "press?"

You're setting up a strawman. Those who believe in a "living constitution" always start with the text of the constitution.

Certainly the rule of stare decisis binds judges much more strongly than any judicial adherence to strict textual analysis -- that's what separates a common-law system like the US from a civil law system like Germany.

So is a jurisprudence of "original intent" even possible? If it is, what is it?

I note that while South Carolina maintained its law surprisingly long, it still changed it before, not after, a supreme court (state or federal) found the practice unconstitutional. I see that as a reason to trust the democratic process, and be skeptical about the courts.

I agree that Congress and the state legislatures have failed at their job to keep America's constitutions up to date. Nevertheless, updating them remains the responsibility of the legislatures not the courts. I also believe that you are assuming much of your conclusion by using "approval" as a synonym for "finding constitutional". One can believe, as I do, that the US constitution sucks in important respects, that it does not deserve the aureole that America's civil religion surrounds it with, and that it is in desparate need of amendment. For people like me, saying "I strongly disapprove of this" is perfectly consistent with saying "I find this constitutional".

Who is "our" in this sentence "the American jurists'", or "the American people's"? That's an important difference in the context of our discussion.

... and even Robert Bork thinks that a wiretap is a search under the Fourth Amendment. But it is clear from founding era documents that the First Amendment was meant to protect the communication of ideas, and that the Fourth was meant to protect a realm of privacy within ones home and records.

What originalists are saying is that you cannot make up new principles such as proscribing voluntary prayer in government buildings (as recently applied to school prayers) or extending the realm of privacy beyond ones homes and records (as recently applied to abortion)

I would look at founding era documents, for instance at the excellent collection in The Founders' constitution Looking up their sources on the First Amendment, I would discover that it's clearly understood meaning was to protect the communication of ideas. That includes speech, it includes printing, but it also includes other forms of expressive conduct, which I think Scalia discusses in his opinion on the flag burning case.

How very petty is your strawman.

They may begin there, but they will not end there.

Let's take the example you no doubt expected me to come up with. If you look up "commerce" in a founding era dictionary, or read Madison's notes of the ratification debate, you will find nothing in the founders' understanding of the word "commerce" that any reasonable reader would find consistent with Ashcroft v. Raich. No interpretation of the original understanding, even if suitably abstract, would find that a guy who grows his own marijuana in his own house fits in under "commerce among the several states". This is a case where the text is clear, and the court applied salami tactics to give it the meaning of a clause that was proposed at the constitutional convention, and explicitly voted down. ("Congress can do pretty much all it wants to" -- I can find the exact wording if you want to.) Clarence Thomas stated the obvious in his dissent: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers." I find it utterly alarming that nobody on the Supreme Court joined Thomas's dissent. And I am troubled how frequently Thomas is chided as an "extremist" when he draws conclusions as straightforward as this one.

But written constitutions have always been creations of Roman Law, not Common Law. If America had wanted to stick with its English common law tradition, why have a written constitution in the first place?

I agree with your pointing out that the distinction between "originalism" and the "living constitution" is a matter of degree -- even if it's quite a lot of degree sometimes. I also agree when you suggest that there is no rigorous way of defining "originalism". There always is an element of "I know it when I see it" in labeling someone an originalist (or not). But that said, on this "I know it when I see it basis", I assure you that every judge on Germany's Bundesverfassungsgericht (Federal Constitutional Court) would count as an "originalist" if he was sitting on the United States Supreme Court.

And while I don't always agree with them either, they do find it possible to decide cases competently. (And our constitution does not explicitly talk about TV and radio either.)

And you feel the same way laws regarding racial segregation, interracial marriage, and prohibitions on the sale of contraceptives?

That you depart from the plain text of the amendment to determine what it really means shows that originalism differs from a jurisprudence of a "living constitution" only as a matter of degree, not as a matter of kind.

You rely on these records as evidence of "intent," yet, because the authors weren't necessarily interested in creating a record of their intent when they drafted those documents, they are actually less reliable as indicators of intent than the words used in the amendment themselves.

I'm not surprised that German jurists are "originalists." After all, they aren't judges in a common law system.

No, it does mention radio (Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet), as well as protecting the right of citizens to inform themselves from "generally accessible sources" (allgemein zugänglichen Quellen), which would cover television.

Compare Article 5 of the Grundgesetz with the First Amendment, and we can see that the drafters of the former did a much better job of anticipating new technologies than the latter. There is no equivalent to the "generally accessible sources" in the First Amendment.

1. The enumeration of some individual rights in the constitution that are secured against goverment oppression shall not be construed to deny or disparage all other unenumerated rights retained by the people.

As a society progresses and matures, punishments that might have been acceptable and common 230 years ago (e.g., the execution of children and/or incompetents) might be construed by the people to be the product of uncivilized ignorance and become uncommon.

The phrase "due process of law" means the same thing today that it meant throughout time which embodies the "law of the land" as the law exists when it is applied (not how the law might have existed 230 years ago) and requires the application of LEGITIMATE laws that provide both substantive fairness and procedural fairness.

3. What the constitution forbids the government from accomplishing directly, it forbids the government from accomplishing indirectly.

Firstly, a point about legitimacy. The constitution is law, and the citizens of the United States ought to be conscience-bound to obey it, because a democratically elected Congress enacted it.

What got enacted into law at the time was the original understanding of the bill enacted, so this is the understanding that ought to bind the citizens litigating, and the judges deciding cases. Every later interpretation lacks this legitimacy to the extent it departs from that original meaning. It does not matter, at least not to the legitimacy argument, what other virtues the reinterpretations of modern judges may have.

The second important argument for originalism is grounded in the same reason I am a (small-d) democrat: I abhor dense concentrations of power among groups unaccountable to the people. They frustrate the whole concept of self-governance, which I hold dear. To plagiarize Thomas Jefferson, if your (and Posner's) philosophy of interpretation was enacted, that would in practice allow the US Supreme Court to interpret into the US constitution whatever good things it finds appropriate. And since the court would be the supreme judge of good and evil, you would also allow it to interpret into the US constitution whatever evil things it finds appropriate.

There's no "feel" about it -- the Supreme Court was slightly ahead of some state legislatures in those cases. But even in these cases, I don't think it was very far ahead. If the issues had been settled by debating and voting, that's a benefit I would have been willing to pay with a few years of further delay.

No, I rely on these records as evidence of what the text meant to the people who read them at the time it was passed. You are the one referring to "intent", I am not.

I suppose that the words of the constitution conveyed a reasonably clear meaning to the people they were written for. I believe we can discern this meaning through historical research. But I don't suppose I can know what the intent each of several hundred congressmen had in mind as he voted for the bill that was to become the constitution.

I hate to admit this -- but I just tried to refute your argument by offering the 1789 French Declaration of human rights as a counterexample to it. It was written to be interpreted by Roman Law jurists, but is comparable with your Bill of Rights in every other way. In particular, it was co-written by the Marquis de Lafayette, a hero of America's war of independence, and Thomas Jefferson, an American founding father. I was hoping to show that it didn't lend itself to "originalism" any more than the American version; but it does. It is much better, much more abstractly written. Damn. (One wonders why the French Revolution didn't work out.)

Hmmm -- leaving the question of originalism aside for a moment, why don't the United States pass a new constitution, one that does a better job at being general? I hear you do that quite a lot on a state level, and that some of your states have run through three constitutions since they were founded. Why not do the same on the federal level?

Given that you are neither black nor a woman, I can understand.

Thomas wrote:

No, I rely on these records as evidence of what the text meant to the people who read them at the time it was passed. You are the one referring to "intent", I am not.

If originalism doesn't refer to "original intent," then it is meaningless. I can't discern the difference between what the framers "meant" and what they "intended."

I'm not sure why "meaning" is any less elusive than "intent." A review of contemporaneous texts, for instance, would leave us just as bewildered about the original meaning of the Second Amendment as it would leave us about the original intent behind the Second Amendment.

Thomas wrote:

They may begin there, but they will not end there.

The same, of course, can be said of any originalist.

Debra_Law wrote:

1. The enumeration of some individual rights in the constitution that are secured against goverment oppression shall not be construed to deny or disparage all other unenumerated rights retained by the people.

Of course. But the converse is not true -- not everything that the constitution left unenumerated is an unenumerated right retained by the people. As a practical matter, then, how would you find out which unenumerated interests are rights protected under the Ninth amendment, and which are not?

In presenting the proposed Amendment, Madison 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 it may be guarded against. I have attempted it, as gentlemen may see by turning to the [381 U.S. 479, 490] last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834)

. . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

As a society progresses and matures, punishments that might have been acceptable and common 230 years ago (e.g., the execution of children and/or incompetents) might be construed by the people to be the product of uncivilized ignorance and become uncommon.

I know that by saying this, I am coming dangerously close to triggering Godwin's law. But I can't help being a German with a sense of history, so it never fails to amaze me how naively Americans take it for granted that their society progresses and matures. How does your principle apply when society regresses and falls apart, and a large number of people find it's okay again to execute all kinds of undesireables? If this happened in America, do you think a court would be justified in arguing that 'maturity', properly interpreted, now means the state can mass-deport dissidents to Sibiria? (Guantanamo Bay I guess.)

I want to make clear at the outset of my remarks that what I will have to say or, for that matter, what I have heard at this very interesting conference has nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a living document; that is, a text that means from age to age whatever the society or perhaps the Court thinks it ought to mean. In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence; that is, our case law dealing with the prohibition dealing with cruel and unusual punishments. Several of our opinions have stated that what falls within this prohibition is not static but changes from generation to generation to comport with “the evolving standards of decency that mark the progress of a maturing society.”

. . . If I subscribe to the proposition that I am authorized – indeed, I suppose, compelled – to intuit and impose our maturing society’s evolving standards of decency, this conference would be for me a sort of continuing judicial education. As it is, however, the Constitution that I interpret and apply is not living, but dead; or as I prefer to call it, enduring. (Laughter.) It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted – not merely for murder, by the way, but for all felonies, including, for example, horse thieving, as anyone can verify by watching a western movie. And so it is clearly permitted today as far as the Constitution is concerned.

The phrase "due process of law" means the same thing today that it meant throughout time which embodies the "law of the land" as the law exists when it is applied (not how the law might have existed 230 years ago) and requires the application of LEGITIMATE laws that provide both substantive fairness and procedural fairness.

Can you show me a founding era (or earlier) example where a court struck down a law on substantive due process grounds?

Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, repeating Magna Carta's guarantee of "the law of the land." 5 On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes.

Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. Goshen v. Stonington, 4 Conn. 209, 225-226 (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the state constitution's "law of the land" clause. Bank of the State v. Cooper, 2 Yerg. 599, 602-608 (Tenn. 1831) (Green, J.); id., at 613-615 (Peck, J.); id., at 618-623 (Kennedy, J.). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the state's due process clause. Wynehamer v. People, 13 N. Y. 378, 486-487 (1856). The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. Id., at 398 (Comstock, J.). See generally, E. Corwin, Liberty Against Government 58-115 (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85%*129, *351%*397.

Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the judiciary's power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative acts under review. See, e.g., Wilkinson v. Leland, 2 Pet. 627, 656-661 (1829); Calder v. Bull, 3 Dall. 386, 386-395 (1798) (opinion of Chase, J.); see also Corfield v. Coryell, 6 F. Cas. 546, 550-552 (No. 3,230) (1823). But in Fletcher v. Peck, 6 Cranch 87 (1810), the Court went further. It struck down an act of the Georgia legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good faith purchasers of property conveyed by the original grantees. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post-facto laws, laws impairing contracts in Article I, § 10 of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically "legislative" act. Fletcher, 6 Cranch, at 135-139.

Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford, 19 How. 393 (1857). Unlike Fletcher, Dred Scott was textually based on a due process clause (in the Fifth Amendment, applicable to the national government), and it was in reliance on that clause's protection of property that the Court invalidated the Missouri Compromise. 19 How., at 449-452. This substantive protection of an owner's property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451-452, the implication being that the government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here.

After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words "liberty" and "property" as used in due process clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley's dissent in the Slaughter House Cases, 16 Wall. 36 (1873), in which he said that a person's right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be "arbitrarily assailed," id., at 116. 6 After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e.g., Bartemeyer v. Iowa, 18 Wall. 129, 133-135 (1874); Munn v. Illinois, 94 U.S. 113, 123 -135 (1877); Railroad Comm'n Cases, 116 U.S. 307, 331 (1886); Mugler v. Kansas, 123 U.S. 623, 659 -670 (1887). See generally Corwin, Liberty Against Government, at 121-136 (surveying the Court's early Fourteenth Amendment cases and finding little dissent from the general principle that the Due Process Clause authorized judicial review of substantive statutes). . . .

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

The supreme court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law' in the amendment do not mean and have not the effect to limit the powers of state governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution and nothing in the fourteenth amendment to the constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles. . . .

. . . The principle and true meaning of the phrase have never been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank of Columbia v. Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta, incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.' And the conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:) 'The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. Administrative and remedial process may [110 U.S. 516, 528] be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.'

. . . But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians. . . .

. . . This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir JAMES MACKINTOSH ascribes this principle of development to Magna Charta itself. To use his own language: 'It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear; for almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.' 1 Hist. Eng. 221.

. . . In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights, They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice hald in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. . . .

3. What the constitution forbids the government from accomplishing directly, it forbids the government from accomplishing indirectly.

In your jurisprudence, how does that apply to the Commerce Clause as an instrument of accomplishing all kinds of things indirectly that the federal government doesn't have a delegated power to do directly?