Originalism vs. Cultural Relativity

Cultural relativism is the view that all beliefs, customs, and ethics are relative to the individual within his own social context. In other words, “right” and “wrong” are culture-specific; what is considered moral in one society may be considered immoral in another, and, since no universal standard of morality exists, no one has the right to judge another society’s customs. http://www.gotquestions.org/cultural-rel…

This has led to the Progressive idea of the Constitution as a "living document" that can be "interpreted" to include the current morally relativist positions of our political leaders and/or those who's political action committees support the campaigns of our leaders.

As a denial of "universal" human rights as protected specifically by the Ninth and Tenth Amendments, and by the Constitutional provision that Amendments must be enacted to change what is concretized in the Constitution, it is a denial that men have "unalienable" rights. Those unalienable rights are defined in natural law, and they vary somewhat between philosophers, but essentially they are a refutation of relativism.

President Obama's ideal of six years of national service to the United States government in return for school loans, which were made forbidden by lending institutions specifically so that this six year committment could be instituted, is one such case of relativism.

The first known case of relativism was the statement by Protagoras: "Man is the measure of all things: of things which are, that they are, and of things which are not, that they are not".

But if you believe that governments are constituted by the consent of the people, rather than coming from the blunt force of powerful people or from one faction or tribe being bigger and more terrifying than another, than you must believe relativism is wrong.

Consent of the governed is terminology of "popular sovereignty" as defined by Locke and Rousseau, whereby each individual gives up a bit of his freedom to a common government. Jefferson deduced that before any individual could give up such freedom to the "common sovereignty" that he himself must have "individual sovereignty". One cannot give up what one does not have to give.

"Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members." http://aynrandlexicon.com/lexicon/indivi…

That statement is the direct denial of cultural relativism. So is the U.S. Constitution's Bill of Rights.

Cultural relativism taken to an extreme means a tribe still has the right to throw virgins into volcanoes, or to eat other men who happen to be in the way when the tribe is hunting for food, or to rape virgins in order to prevent getting HIV/AIDS when screwing other women who already have it. (This is a true scenario in some parts of Africa.)

"Do not make the mistake of the ignorant who think that an individualist is a man who says: “I’ll do as I please at everybody else’s expense.” An individualist is a man who recognizes the inalienable individual rights of man—his own and those of others.

"An individualist is a man who says: “I will not run anyone’s life—nor let anyone run mine. I will not rule nor be ruled. I will not be a master nor a slave. I will not sacrifice myself to anyone—nor sacrifice anyone to myself.” http://aynrandlexicon.com/lexicon/indivi…

Do not make the mistake of believing that I’ll do as I please at everybody else’s expense, as a statement of moral relativism by a person, tribe, city, or nation, is superior to objective standards of ethics.

© 2010 FAMN LLC (MI)

Overcoming the "Overcoming of Originalism"

In my original post of this blog I wrote: "Taken as a 'living document' progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A 'living document' needs no Amendments. It can be twisted to meet the needs of whatever political party has power."

This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence." 


What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.


But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.


But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law? 


For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.


The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.


If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths. 


Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.

© 2010 FAMN LLC (MI)

Individual Sovereignty and Ayn Rand

America's Founding Fathers challenged the institution of the state as the ruler of the individual. Man’s right to exist for his own sake, wrote philosopher/novelist Ayn Rand, was their guiding principle, and they were "determined to establish on earth the conditions required for man’s proper existence, by the 'unaided' power of their intellect."

Those Founders, she wrote, knew man as "an independent, sovereign entity who possesses an inalienable right to his own life." From the Lockean concept of "popular sovereignty," differing from both Hobbes and Rousseau, where he laid the premise that the legis­lature was only empowered to legislate for the general welfare, the Founders discovered a political axiom.


Whether Locke meant to imply that sovereign power was only in the legislature or in the people, Jefferson and others concluded it was in the individual, the only political entity capable of thought, and the one ultimately responsible for his own welfare, and each must be the one in whom the primary authority rests. Without his consent, there can be no legislative body.


Black's Law Dictionary says sovereignty is "The state of condition of being free from dependence, subjection, or control." But under the U.S. Constitution, the people create a deliberate dependence on their governments to protect the rights they also claim to be able to recover when and if they should so decided to change their form of government. This implies directly that they freely submit some of their sovereignty to their government. That which is freely submitted is the power Locke called "popular sovereignty".

References from the Ayn Rand Lexicon:

1. For the New Intellectual
2. The Virtue of Selfishness 

Black's Law Dictionary; Fourth Edition

© 2010 FAMN LLC (MI)

What is "Individual Sovereignty"?

A couple of times I have been verbally assaulted in emails by people who claimed that only nations had "sovereignty". Apparently they have never heard of "popular sovereignty", a concept dating back to the middle of the 17th century, formulated as part of social contracts. "Popular" sovereignty is no more of a nation than "individual" sovereignty is.

John Locke, as Hobbes before him, claimed that social contracts were unbreakable. He stipulated however that if the legislatures did not work for the good of the citizens, they could replace the legislature.

"Popular sovereignty," therefore, becomes "the notion that no law or rule is legitimate unless it rests directly or indirectly on the consent of the individuals concerned."
http://www.basiclaw.net/Principles/Popular%20sovereignty.htm

Thomas Jefferson and others wondered how individuals could consent to give to a social contract powers they themselves did not have to begin with. We cannot give bread to a food bank if we don't have bread; how can we give consent to others to make rules for us if we don't have the original power to make rules for ourselves? They therefore concluded that individuals did, indeed, have such natural rights that only individual sovereignty could morally defend.

""Natural rights [are] the objects for the protection of which society is formed and municipal laws established." -Thomas Jefferson, letter to James Monroe, 1791

But, "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." Joseph J. Ellis

"And thus, [ascertained to him by natural and eternal equity,] every man is sole lord and arbiter of his own private actions and property--a character of which no man living can divest him but by usurpation, or his own consent. -John Trenchard, January 20,1721 The Freeman 

"The relationships between federalist political structure and the sovereignty of the individual must be carefully examined..." James M. Buchanan

In contrast to the Articles of Confederation, in which the sovereignty of the States, not all of which followed the rule of "natural rights", formed the United States, it was the sovereign people who created the United States under the Constitution. And the people were sovereign in their individual, not collective, capacities. The Ninth and Tenth Amendments saw to that.

"Legislation for communities, as contradistinguished from individuals," Hamilton wrote with Madison in Federalist No. 20, "is subversive of the order and ends of civil polity."

It even comes to us from the Czeck Republic's first President, Václav Havel: ""The sovereignty of the community, the region, the nation, the state--any higher sovereignty, in fact--makes sense only if it is derived from the one genuine sovereignty, that is, from human sovereignty, which finds its political expression in civic sovereignty." Cato Journal

Elizabeth Price Foley, wrote that the U.S. was created on two “foundational principles”, limited government and individual sovereignty.

No individual can willingly give to the "common sovereignty" what he himself does not already possess. This brings many questions to mind concerning taxation, the use of military and police force, etc. But those belong in another debate, and they can be rectified where they are wrong, to respect common or popular sovereignty, and often individual sovereignty.

© FAMN LLC (MI)

The Mount Vernon Statement

On February 17, 2010, a number of well-known and influential people met at President Washington's home, Mount Vernon, to sign The Mount Vernon Statement, billed as Constitutional Conservatism: A Statement for the 21st Century.

Liberal groups, said the Vancouver Sun, dismissed the Mount Vernon Statement as a rehash of right-wing ideas better suited to the 18th century than the 21st.

"The Mount Vernon Statement," reported the Sun, "appears to be yet another recitation of the same tired dogma we've seen for decades," said Michael Keegan, president of People For the American Way.

No explanation was given for why the U.S. Constitution is "better suited to the 18th century than the 21st". But it appears clear that the signers have comitted themselves to one error. Throughout the Statement they refer to the Constitution as a "conservative" document.

"At this important time, we need a restatement of Constitutional conservatism grounded in the priceless principle of ordered liberty articulated in the Declaration of Independence and the Constitution," reads the Statement. "The conservatism of the Constitution limits government’s powers...A Constitutional conservatism unites all conservatives...It reminds economic conservatives [and] social conservatives [and] national security conservatives [that] Constitutional conservatism based on first principles provides the framework for a consistent and meaningful policy agenda."

The error is in the attempt to label and to categorize the U.S. Constitution as a conservative document. It was not a conservative document in 1787. It was not debated nor established in a conservative atmosphere.
A "radical act occurred when 55 representatives of the 13 colonies gathered to improve on the Articles of Confederation and instead locked the doors, posted sentries, and proceeded to discuss, debate, and develop the most unprecedented document ever created as a blueprint for governing a nation.

"This radical document we know today as The Constitution for the United States of America. Never before in the history of mankind had such an approach been suggested, and then ratified....This was truly revolutionary, radical, bold in vision, and bolder in application." Gary Wood

So, "why does the New York Times label Ron Paul as the most radical congressman in America for calling for a return back to our constitutionalist ideals?" Through the Magnifying Glass

Because the American people have no idea what freedoms they would once again own as individual, sovereign entities under Federalist principles governed by the ideal of a republic. To roll back the clock to such a moment when men were again "Citizens of their several States" instead of "citizens of the United States" under the 14th Amendment; to go back to a time when the Interstate Commerce Clause did not give the Federal government the power to control nearly every aspect of industry and commerce, would be radical in and of itself. It would require legislators in every State and in Congress who understood Originalism. It might require a Constitutional Convention, because to right some wrongs would require Amendments. We cannot simply "go back" without unintended consequences. Laws that put legitimate criminals in prisons are sometimes not legitimately "laws" according to Originalist interpretations of the Constitution, and yet we cannot let dangerous people out of prison.

President GeorgeW. Bush was not the first to declare certain captured enemy soldiers by the title of "enemy combatants"; Lincoln did so during the Civil War, and there are those who would perhaps be correct to say that both Presidents were wrong to do so. Yet there are men detained at Gitmo who would kill another 3000 Americans (or Spaniards or Malays or French or British or Germans) if they were released.

The Constitution is not the "conservative" document the Republicans would like us to believe. It is more important than that, more primary, more principled, more limited than most Conservatives would want to see.

We got into this messy situation of ignoring and going around the Constitution because Republicans as much as Democrats and Progressives wanted the power to control the forces of law.

We don't need "conservatives", Tea Party or otherwise, controlling our nation. We need the radicals who will state without equivocation, "I swear to abide by the Constitution as it was given to us, not as I would have it through subversion."

© FAMN LLC (MI)

Tea Parties vs. Originalism

Tea Party language calls for "smaller government". Smaller government means nothing, because theoretically it could still include Medicare, Social Security, income taxes, death taxes, and other forms of government power over the individual that was never "originally intended."

Indeed, if the Founders had known then what they could not have known without omniscience, they would have crafted a Constitution that would not allow for the idea of a "living document."

Taken as a "living document" progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A "living document" needs no Amendments. It can be twisted to meet the needs of whatever political party has power.

"Originalism is the view that the Constitution has a fixed and knowable meaning established at the time of its enactment." U. of San Diego School of Law The Tenth Amendment tells us that the powers not delegated to the United States nor prohibited to the States themselves are either reserved to the States, or to the people. In theory this means each individual ought to have the freedom to do whatever he or she pleases so long as it does not abrogate the sovereignty of any other individual within the definition of such sovereignty. 

Unfortunately, there is little in the Ten Amendments to guarantee such sovereignty.

"Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." wrote Joseph J. Ellis.

The separation of church and state came to be part of our law, not by being written in the Constitution, but by being a part of the national debate during the writing of the Constitution, by being accepted as a "common assumption of the day."

This is Originalism and that is how it operates; the Jurist behind the bench reaches back into the history of our Founding, discovers what the Founders wanted even if they failed as men to include it in the Constitution, and then he incorporates that Original thinking into his decision.

We cannot blame the Founders for their lack of omniscience. We must look to what their intentions were and accept them as the guiding principle behind the document being judged.

If the decision of the Jurist does not match the needs of the people or of society as it exists today, it is then up to our Legislative branches to write the laws that will meet our needs--but those laws must also meet the Original Intent of the Founders, or we must create an Amendment to meet the current need. 

© FAMN LLC (MI)