March 19, 2000

Microsoft Corporation
RE: Encarta

Dear Sirs:

I have read with interest your “Encarta” (Microsoft on Line Encyclopedia)
Bill of Rights, an interpretation that embodies the concept of a living
Constitution. First, the concept of a living Constitution makes of the
venerable document a meaningless parchment which reflects whatever the
prevailing political winds wish it to mean ? far from what our Founders
intended.

Regarding this very issue here is what I wrote to my local paper, The Macon
Telegraph (circulation 300,000):

“Yesterday [March 1, 2000] while campaigning, Vice President Al Gore stated
he would be looking at Supreme Court Justices who will recognize the theory
that the Constitution is a ‘living, breathing document’ that adapts to the
evolving mores of the American people. The endorsement of this obfuscating
concept of the Constitution coming from a Democratic presidential hopeful is
a danger to our constitutional rights and a peril to our liberties. Instead
of a fixed document with a definite meaning, the adoption of this concept
emasculates the sacred document, and the “Supreme Law of the Land” becomes
meaningless. Expressing the opposite view, that is original intent, Thomas
Jefferson wrote in 1823, ‘On every question of construction (of the
Constitution) let us carry ourselves back to the time when the Constitution
was adopted, recollect the spirit manifested in the debates, and instead of
trying what meaning may be squeezed out of the text, or invented against it,
conform to the probable one in which it was passed.’

“The applied ‘living document’ theory by Al Gore and activist judges would
unbind the federal leviathan for mischief and the usurpation of power from
Jefferson’s chains of the Constitution. There are two amending processes
described in Article V of the Constitution, but those are not the methods Al
Gore and liberal Democrats have in mind because they don’t have the support
of the American people to carry them out.

“Thomas Jefferson wrote: ‘Yes, we did produce a near perfect Republic. But
will they keep it, or will they, in the enjoyment of plenty, lose the
meaning of freedom? Material abundance without character is the surest way
to destruction.’

“Our Constitution was intended for informed and vigilant citizens and the
fact is if we ever have a ‘living document,’ then we will no longer have a
Constitution.”

Second, you refer to our form of government as a democracy. Our form of
government was not meant to be a democracy, despite the clamoring of
politicians and talking heads to that effect. Your scholars should know
better. The letter that follows, revolving around this issue within the
context of impeachment, was printed in part in the Medical Sentinel, the
official peer reviewed journal of the Association of American Physicians and
Surgeons (AAPS), as well as The Macon Telegraph:

” From discussions, there evinces a persistent confusion about a democracy
(i.e., majority rule) and a republic (i.e. the rule of law, where both
rulers and citizens obey the same laws) form of government.

“The scandals surrounding and possible grounds for impeachment of our
President provide another clarification point. If indeed the President?s
popularity is as high as claimed by the media commissioned pollsters (i.e.,
as far as ‘job performance,’ not character), then if we lived in a
democracy, a 51% majority vote in the popularity contest would exonerate the
President. On the other hand, in a Republic, public opinion would be much
less relevant, and he would be, regardless of his popularity, held
accountable according to the process of the rule of law.” (The president, as
you know, was impeached by the House, although he was not removed by the
Senate.) Furthermore, “during the Constitutional Convention in Philadelphia
in 1787, the Founding Fathers rejected a democratic form of government which
they likened to a lynch mob and decried as a government not by the judicious
rule of law but the capricious rule of man.”

To close this second objection, I should perhaps quote James Madison, the
Father of the Constitution, who wrote: “A pure democracy can admit no cure
for the mischief of faction. A common passion or interest will be felt by a
majority, and there is nothing to check the inducements to sacrifice the
weaker party. Hence it is that democracies have ever been found incompatible
with personal security or the right of property; and have, in general, been
as short in their lives as they have been violent in their deaths.”

And thundered Fisher Ames, Massachusetts delegate to the Constitutional
Convention: “Democracy is a volcano, which conceals the fiery material of
its own destruction.” In its stead, our Founding Fathers preferred and gave
us a republic. Thomas Jefferson wrote on March 11, 1790: “The republican is
the only form of government which is not eternally at open or secret war
with the rights of mankind.”

Thirdly, you misprinted the text of the Second Amendment which actually
reads: “A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be
infringed.”

And regarding this very issue, I should refer you to the article which I
wrote and which appeared in Human Events, “The Second Amendment Conveys
Individual Rights” (February 4, 2000):

“In public pronouncements, Attorney General Janet Reno?s Justice Department
and other administration officials have implied erroneously that the Second
Amendment refers to a collective right rather than an individual right.
Never mind that when James Madison, the father of the Constitution, wrote ?
‘The advantage that Americans have over every other nation is that they are
armed,’ and Patrick Henry proclaimed, ‘The great objective is that every man
be armed; everyone who is able may have a gun’ ? they were elucidating the
Second Amendment referred to an individual right rather than a collective
right.

“The same Congress that passed the Bill of Rights (with the Second
Amendment) also passed the Militia Act of 1790, which defined the militia as
‘every able bodied man of military age.’ More recently, in the U.S. v.
Verdugo decision of 1990, the Supreme Court held that when the phrase, ‘the
people’ is used in the context of the Second Amendment, it means
‘individuals’ ? as to mean ‘the right of the people to keep and bear arms
shall not be infringed’; these are the same ‘people’ mentioned in the First,
Fourth, Ninth, and Tenth Amendments of the Bill of Rights.

“The Bill of Rights was added to the Constitution to limit the power of
leviathan government, and individual rights were enumerated in this sacred
document, so that they would be specifically protected from the monopolistic
tendency of government to wrest power away from the individual citizen. That
is why when the great Virginian George Mason thundered rhetorically, ‘I ask,
sir, what is the militia?’ He continued, ‘It is the whole people except for
a few public officials?To disarm the people (is) the best and most effectual
way to enslave them.’

“Although, there have been no recent Supreme Court decisions on the Second
Amendment regarding a collective versus an individual right, various courts
have ruled that the individual has the right to keep and bear arms: Presser
v. Illinois 116 U.S. 252 (1886); U.S. v. Cruickshank 92 U.S. 542 (1876);
Miller v. Texas 153 U.S. 535 (1894); Robertson v. Baldwin 165 U.S. 275
(1897); and Miller v. U.S. 307 U.S. 174 (1939). In this last case (Miller,
1939), the Supreme Court explicitly stated the Second Amendment protected
an individual right to keep and bear arms, particularly protecting
military-styled (assault) weapons which are considered ‘part of the ordinary
military equipment.’ The Supreme Court affirmed this even when Miller and
his attorney failed to show up for the hearing and could not be found, and
thus, only government lawyers presented their side without rebuttal. No
wonder Supreme Court Justice Clarence Thomas has stated that it may be time
for the Supreme Court to revisit the Second Amendment, calling it — like
his predecessor, Justice Joseph Story (1779-1845) — the palladium of our
liberties.

“Between 1980 and 1995, of 39 law review articles, 35 noted the Supreme
Court?s prior acknowledgment of the individual right of the Second Amendment
and only four claimed the right is a collective right of the states (three
of these four were authored or co-authored by employees of the gun control
lobby).

“Since 1995, a consensus has been emerging and constitutional scholars ‘from
across the political spectrum’ have concluded that the Second Amendment
protects an individual right, a view that is referred to as the ‘Standard
Model’ by University of Tennessee Professor Glenn Harlan Reynolds. The
nation?s leading legal and constitutional scholars, including Laurence Tribe
of Harvard, Akhil Reed Amar of Yale, William Van Alstyne of Duke University,
Sanford Levinson of University of Texas Law School, Don B. Kates of the
Pacific Institute for Public Policy Research, attorney David Kopel of the
Independence Institution, and noted Fairfax, Virginia attorneys Jeffrey
Snyder and Stephen P. Halbrook, all subscribe to this ‘Standard Model.’

“Finally, Profs. Laurence Tribe and Akhil Reed Amar, writing in The New York
Times (Oct. 28, 1999), opine that both the freedom of speech and the right
to keep and bear arms are subject to reasonable regulations ? which we have
known all along. You cannot scream ‘fire!’ in a crowded theater, nor prevent
law-abiding citizens from protecting themselves and their families from
criminal predators with firearms. And yes, we can lock up criminal predators
and keep them away from firearms.”

Thus, for the benefit of your clients and software users, particularly your
impressionable minds who are just beginning to familiarize themselves with
our form of government, I suggest you make the appropriate modifications in
your text. I would be happy to help you do so or recommend others who could.

Sincerely,
Miguel A. Faria, Jr., M.D.
Editor-in-Chief, Medical Sentinel of the Association of American Physicians
and Surgeons (AAPS)
Clinical Professor of Surgery (Neurosurgery, ret.) and Adjunct Professor of
Medical History, Mercer University School of Medicine
P.O. Box 6093
Macon, GA 31208
(912) 757-9873
Fax (912) 757-9725
Website: http://www.haciendapub.com