constitutional interpretation

Since the founding fathers quotes with respect to their views on our country, and reasons for many of the provisions in our Constitution can be ascertained from historical records which are in the public domain for all to see, publish or expound on at will, below are some of James Madison's comments with respect to Congressional legislation (such as the recent stimulus), war and citizen's property rights.

Mr. Madison is credited with being the father of the Constitution actually, so felt his thoughts in light of the challenges America is now facing might be of interest to those of you who believe still in the America of the founders rather than the America it has become:

"It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

"With respect to the two words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

"The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war."

"The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right."

"The rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted."

"War should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits."

"Wherever there is interest and power to do wrong, wrong will generally be done."

"Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." 

I'm not so concerned about whether or not the Right or the Left win on their issues; I'm concerned about proper Constitutional interpretation, judicial activism and the "presumption of liberty" vs. the "presumption of Constitutionality" when it comes to judicial review. So, from a liberty-minded perspective, here are some serious questions that should be asked of the SCOTUS nominee that replaces David Souter. (Thanks to my co-worker, Joe Henchman, for help on these.)

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state's discretion?