It's time to give Justices like Stephen Breyer their just dues by no longer respectively entertaining their legal thesis built solely on ignorance or their hopelessly flawed historical antidotes'. Justice Breyer rhetorically asks James Madison, "James, when you wrote that document, did you have in mind a document that would actually work to produce a democratic society over a period of three or four or five hundred years, or did you want a document of pristine logic that would in fact not last all that long?"
Breyer then asked: "Did you want it to be workable or not?"
Breyer surely would have expected Madison to reply that the "permanent success of the Constitution depends on a definitive partition of powers between the general and State governments." James Madison is absolutely right -- any attempt to uproot the people's democracy against their own consent and written constitutions, and attempt to pretend the national Constitution is the caretaker and final arbitrator of the peoples democracy would then lead to nothing but conflict and revolving inconsistencies.
In short, Breyer is asking Madison the wrong question because the US Constitution is not a instrument designed to produce democracy -- only the people through their own State Constitutions and acts produces democracy.
The peoples liberties and laws is not found anywhere in the US Constitution, but only in the declaration of independence and State constitutions which sprung from this immortal declaration long before the current Constitution's ink had dried - a place for which the people's liberties was preserved and not delegated to the national government.
Madison couldn't have said it better when he said: "The powers reserved to the several States will extend to all objects, which concern the lives, liberties and properties of the people."
Breyer also ignores the fact the framers of the current Constitution felt the greatest threat to the peoples democracy came from the federal government - for which is why was striped of unlimited powers and instead left clothed in very limited powers in order to protect the great liberty of the people to govern themselves.
Speaking of the 14th amendment, Breyer asks: "What's it there for? What did these people have in mind? What were they trying to do?" A better question Breyer could have asked since he is so pro-democracy is: Why are we still recognizing this 14th article to the US Constitution as something democratically adopted by the free consent of three fourths of the States?
And further still, why do we continue to recognize such a tyrannical abuse of one party over the other in circumventing the Constitution itself to amend it at all costs by the end of a bayonet?
Remove the corruption and bayonet of the radical Republican Party, and we find that only 19 States -- far short of the required free consent of 28 States -- freely consented to adopting the 14th amendment. Obviously then, we are still required today to pretend the 14th article of the US Constitution was freely adopted by the required 28 States.
To help out justice Breyer here, the reason the 14th amendment was proposed was because of one man: President Andrew Johnson. This answer leads to answering Breyer's other two questions, for which the answer was to remedy Johnson's corrupt puppet governments (Sen. Howard had called them bogus-governments, while Bingham called them something far worst) he had established in the rebel States after the end of the civil war; and to make sure no one could again hijack State government to again risk another insurrection.
I'm afraid justice Breyer still has a lot of learning ahead of him.
Isn’t Border security National Security?