Bork's pixalated idea of "original intent"

To the editor, Harper’s:

Cass Sunstein was nowhere near hard enough on the halfway originalists. (Harper’s, September 2005) What have all of them missed, just for starters? Robert Bork, The Tempting of America, says it is heresy to deny that judges are bound by the law, i.e., original intent (p4). He then says a lot of New Deal and Great Society cases were decided wrongly on that basis, but have become too much a part of the fabric of society to change now (p158). He accepts paper money. even to the point of questioning judicial sanity (pp155, 157, 158), and the draft (p122), without the slightest examination of original intent.

Why fulminate merely about judges creating rights not in the Constitution, but not powers? Helvering v. Davis (1936) held Social Security to be an emergency power to spend ourselves rich, not an enumerated power. How long before it creates its own emergency?

Former Federal Reserve secretary Bray Hammond wrote in his 1957 Pulitzer prize winning Banks and Politics in America from the Revolution to the Civil War, Chapter 4, quite a complete history of the monetary clause:

"...These decisions removed whatever constitutional inhibitions ever existed upon the power of Congress to authorize anything it wishes as money. Thus, in the course of 150 years, changes in monetary and business habits, in governmental responsibility, in statutes, and in jurisprudence have strengthened the Constitution's ban on issues of money by individual states but have nullified completely the original intent that the federal government should have no power to make anything but the precious metals legal tender. "... One can either consider the departure from the original intent a calamity or hold that the original intent, though wise at the time, could not possibly endure...." (pp109-110)

When the framers said, "raise and support armies," they meant paid professional armies. There is compulsory military service, but under the militia clauses,. It is certainly not intended to reduce American citizens to mindless tools of the government, nor to send them halfway around the world, whether or not they are needed for emergencies at home, such as Katrina. This we can see from the Federalist Papers, the debates in the First Congress on the Bill of Rights, and Story’s commentaries. If we know what to look for, the 1980s Perpich v. DOD cases show the National Guard is unconstitutional as a commingling of army and militia.

William F. Wendt, Jr