Ron Paul and Originalism

    In recent posts I have taken the time to address the subject of Originalism within the Tea Party. Those posts have been clear, that I do not think Originalism exists in the Tea Party movement, to any degree that is catching the attention of journalists with more time and experience in the field, than I do. In Monday's post I was questioning whether Congressman Ron Paul is an Originalist.

    

    Using the various search engines to be found on the internet, I have discovered no connection yet to Paul and Originalism. Paul does, however, have some interesting ideas that harken the lamp of Originalism; it is simply that I can find no link between the philosophy and the man. Using the search engine on RonPaul.com presents you with "Apologies, but no results were found," both for 'Originalism' and 'Originalist'.

    

    The Congressman has been heard many times calling for a review of the philosophy of government. Using 'philosophy' in his fan site's search engine does bring up many instances related to his own philosophy, "with his trademark message of downsizing the federal government, bringing our troops home, balancing the budget and ending the Federal Reserve."[1] But they fall short of saying he is an Originalist. His own site has no search engine.

    There is some hope that he 'leans' toward an Originalist reading.[2] On the website maintained by his own staff, he refers to the 'war on drugs' as "that disastrous and unconstitutional war." But then instead of addressing the reasons for its un-Constitutionality, Paul begins to sound like an apologist, saying "the federal drug war creates many additional dangers, while failing to reduce the problems associated with drug abuse." The question then becomes, as I have pointed out in previous posts on various subjects: If the war on drugs did NOT fail to reduce the problems associated with abuse; in other words, if the war on drugs DID reduce such problems as are associated with abuse, would Paul still consider the law to be un-Constitutional? Is there not a right for adults to use (or even abuse) so long as their use/abuse was private, or consensually used with other adults?[3]

    Under the tab 'Who is Ron Paul?" we read that he is "the leading spokesman in Washington for limited constitutional government," and "Dr. Paul never votes for legislation unless the proposed measure is expressly authorized by the Constitution."

    But in his criticism of the 'war on drugs' he rose on the floor of the House of Representatives "in reluctant support for S. 1789, the Fair Sentencing Act. My support is reluctant because S. 1789 is an uncomfortable mix of some provisions that reduce the harms of the federal war on drugs and other provisions that increase the harms of that disastrous and unconstitutional war. I am supporting this legislation because I am optimistic the legislation's overall effect will be positive."

    So it is incorrect to say that Paul 'never' votes for un-Constitutional legislation. In this case he voted to change it, not eliminate it.

    But Ron Paul is the front-runner in the House on the issue of freedom and liberty, according to the Constitution as he sees it.

    The question still remains, lacking any discoverable evidence, whether Paul is an Originalist. This is important, because the Tea Party needs a leader who uses Original Intent, and does not simply pay it lip service.[4] The Tea Party is showing a propensity for getting sharply defined cuts in budged spending; but if money is continued to be spent on un-Constitutional laws (or eliminated from some) without attacking the root cause--the existence of the law itself--then that law, or others like it, are free to be hoisted back into Congress by the next liberal/progressive government.

  

[1] Ron Paul’s Speech at CPAC 2011: The Brushfires of Freedom Are Burning!

Disclaimer: RonPaul.com is maintained by independent grassroots supporters of Ron Paul. Neither this website nor the articles, posts, videos or photos appearing on it are paid for, approved, endorsed or reviewed by Ron Paul. For Ron Paul's official website go to House.gov/Paul 

[2] See Randy E. Barnett's Original Means vs. Intent

[3] See Speeches and Statements then The Statement on the Fair Sentencing Act (see)

[4] I sent an advance copy to the Congressman's Office, but I do not expect a reply before this is published.I will however share any answers in this blog, after an answer is received.

© Curtis Edward Clark 2011

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A Brief, Brief Exam of the Modern Counter-Enlightenment

    Someone recently asked if we have passed through the postmodern era into a new period of cultural and social history.

    No.

    "Marxism and postmodernism: people often seem to find this combination peculiar or paradoxical..."[1] They are neither. It was the 'modernists' who led us from Lockean/Jeffersonian individualism into the 'Beat Generation' of artists who came, post-WWII, from the indoctrination of the socialist elements of the unionist movements of their parents' and grandparents' generation.

    The tenets of the movement, its belief in progress, freedom, and equality, had been sustained from the outset by artists and intellectuals, and embraced by those who reaped the material benefits it brought.[2]

   Those were the individualists like Alexis de Tocqueville, whose historic first-hand description of Americans showed us to believe that "all values are human-centered, the individual is of supreme importance, and all individuals are morally equal. Individualism places great value on self-reliance, on privacy, and on mutual respect. Negatively, it embraces opposition to authority and to all manner of controls over the individual, especially when exercised by the state."[3] And so it included writers like Nathaniel Hawthorne, Mark Twain, and Washington Irving.

    But envy of men like John D. Rockefeller, Andrew Carnegie, J.P. Morgan, A. A. Talmadge, and others led to a form of anti-industrialism where the forerunner of today's lobbyists were the so-called competitors of those men. 

    "Intense lobbying began between 1869 and 1877, during the administration of President Ulysses S. Grant. The most influential lobbies wanted railroad subsidies and a tariff on wool. At the same time in the Reconstruction South, lobbying was a high intensity activity near the state legislatures, especially regarding railroad subsidies. The term itself came from Britain to describe approaches made to Members of Parliament in the lobbies of the House of Commons..."[4]

    Lobbying as it was practiced then does not 'embrace opposition to authority', it used authority; nor did it despise 'all manner of controls over the individual, especially when exercised by the state'. It wanted the intervention of the State, because then the lobbyists gained power over those who could manage quite nicely without any government assistance.

    In other cases it was quite the opposite: those who could do quite nicely without government interference or 'assistance', were forced to pay-off men in high places who could create interference with tariffs and subsidies to their competitors who were seen as being unable to 'compete' without running interference on their behalf.

    'Modernists' were therefore anti-industrialist anti-individualists. The violence of the unionist movement is rampant with people more interested in wresting power from the industries, than with the plight of the poor working class who needed someone to speak for them, to help them raise their wages and gain benefits. "The Russian Revolution had seemed at the time, and for a long time after, to be the answer to the progressive modernist's dream."[2]

  We are--and have been since the age of Rousseau and Kant--in the age of the counter-Enlightenment. To think of 'modernism' or 'post-modernism' while stuck in one era (in which we are going backward toward Plato's Cave) is ridiculous. Until we overthrow the counter-Enlightenment that spawned Napoleon and Trotsky, Eugene V. Debs, the Industrial Workers of the World,  and "the anti-modern, ideological religious right"[5]--until we do this and get back to thinking in terms of negative rights rather than positive rights, (not to be confused with 'negative liberty' and 'positive liberty') will we actually be in the 'modern era'. Only then, someday far in the future, can we ever look to a 'post-modern' era---and I hope it's rational.

[1] New Left Review
[2] Modernism and Politics
[3] Britannica Precise Encyclopedia
[4] Lobbying in the United States: History
[5] American conservatism as Counter Enlightenment

© Curtis Edward Clark 2011

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Ron Paul vs. Paul Ryan

    I was surprised to read that Congressman Ron Paul was criticizing Paul Ryan's huge $4T budged overhaul.
    In part, he said he thinks we are “drifting to a point that our big government [ ] tells us what we can do and be responsible for us. And if we don’t have a house, they’ll give us a house. If we don’t have education, they’ll give us free education. If we’re hungry, we get food stamps. And deficits don’t matter. And if you need money, you print the money. And we have this moral obligation to police the world."
    But that makes sense--sort of. Ron Paul is correct, but where has Paul ever said this or that government program is un-Constitutional? Has he only criticized 'big' government without attacking its roots? You have to eradicate the roots of anything be they plants, government programs, or ideologies--or they will grow back again.
    Paul did say more, to that end. "We are dealing with a problem in Washington as a budgetary accounting problem and that’s not it. It’s a philosophy problem." Paul said. What is the philosophy of government?
    The congressman went on to question the role of government in the economy and welfare system. "Ryan," he said, "doesn’t reject that notion. I do.”
    On the Mangru Report hosted by Dan Mangru, posted on Paul's own fan website, Paul says this:

"As long as the American people think that we have to police the world and have this world empire and that we have to take care of people from cradle to grave, no tax system will work. You have to change the philosophy of government. Then you can do away with the income tax and not replace it with anything just as we had before 1930."

    But I still have to ask what Paul's philosophy of government is? Is he afraid to confront the idea of un-Constitutionality run rampant, or have I simply been missing those new articles and TV interviews?
    Perhaps it is because Paul only thinks that we are drifting toward Big Government that I am peeved about his remarks. That makes me skeptical of whether he is up to the job of helping to lead us out of our suicide-by-altruism mentality.
    I will do some homework, and find out. Ron Paul is correct about Paul Ryan--but only if Ron Paul believes the current philosophy of government itself runs counter to Originalism and to what is specifically written, both in the Constitution and in the letters and papers by the Founders about that philosophy. Otherwise, he is no different from Paul Ryan; he only wears a different suit to hide what he isn't showing.
    Show us the beef, Congressman Paul. Show us your Originalist interpretations.


© Curtis Edward Clark 2011
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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.'

    In my recent posts, I have stuck-like-glue to the comment in made in the very first entry of this blog:

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.'

   As I've been saying, it is the issues that are being ignored, except occasionally by Rep. Fred Upton (R-Mich.), and Rep. Ed Whitfield (R-Ky.), sponsors of the Energy Tax Prevention Act. Other instances are in cases of state-rights:

   The following states are challenging the constitutionality of the health care law in federal court: Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Nevada, Arizona, Georgia, Alaska, Ohio, Wisconsin, Maine, Iowa, Wyoming, Kansas and Virginia. On January 18, 2011, six additional states–Iowa, Kansas, Maine, Ohio, Wisconsin and Wyoming–petitioned in federal court to join Florida’s law suit.

    That list was copied from the website American Conservative Values, which promotes itself as 'limited government' and 'Constitutional rights', but not specifically laws which strictly adhere to Constitutionality. It could be argued that 'Constitutional rights' are those guaranteed in the first nine Amendments.

    The Tenth applies to the relationship of the States to the Federal government, but just as much as that, in its original meaning was the intention that the Federal government was extremely limited in its contact with the People of the Several States. "The reservation to the States respectively," says the Supreme Court,[1] "can only mean the reservation of the Sovereignty which they respectively possessed before the adoption of the Constitution of the United States and which they had not parted from by that instrument."

    That sovereignty of which they had not parted was the sovereignty of the State government over the citizens; whereas the Federal government, having been created by and for the purpose of the States, was responsible for dealing with the States--but not directly except where expressly provided for in the Constitution--for dealing with the Citizens of the several States. 

[1] My thanks to Barefoot Bob for his invaluable work installing the HTML version on the web (especially the links to the references, as in 'says the Supreme Court', above), of my own favorite reference to the Constitution, about which he said:

"Published before the beginning of the 'Socializing of America' in 1933, it is the best and most edifying rendition of our Foundation Document that I have found to clarify the intent of the Founders and the understanding of 'We the People', the Sovereign Citizens of the United States of America." 

I have owned my own copy since the 1980s, and I'm surprised the pages are not falling out of it. BB's link makes my own use of the book more valuable--to all of us.

© Curtis Edward Clark 2011
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Budgets and Constitutionally Social Issues

    Monday I wrote that the fight about the budget ought to be about ending Federal programs that are not within the limitations of the Constitution, not about 'over spending'.
    This week, with the Congress racing to find a compromise to keep from shutting down the government, calls are being made to defund things like Planned Parenthood.
    This is partisanship at its worst. Certainly Planned Parenthood ought not be Constitutional, and if an Originalist could prove it is, then some law or another ought to be changed or written so that positive rights are wrong.
    Michael Reagan, on Fox News on Tuesday of this week, said that it was always politic in the past to keep social issues out of the fiscal conversation that takes place in public. Fiscal discussions and social-issue discussions should be separated.
    Fine, keep them separated. But don't be partisan about the social-issue discussions. Not all Tea Party thinkers, not all Republicans, not all conservatives, not all independents think Planned Parenthood should be defunded.
    But it is like the woman I wrote about Monday who seemed to be saying the government should act un-Constitutionally by allowing the EPA to regulate, where some members of Congress are of the belief that the actions of the EPA usurp those of the legislative branch.
    Does the existence of Planned Parenthood as a government subsidized entity defeat the originalism the Founders would have expected of the limited powers they wrote into the Constitution?
    Congressman Paul Ryan, R.-Wisconsin, announced this week a budget that will cut spending by $4 trillion over the next decade.On "Fox News Sunday with Chris Wallace", Ryan said, "We need to engage with the American people on a fact-based budget, on stopping politicians from making empty promises to people and talk to the country about what is necessary to fix these problems." He continued, "But if we keep kicking the can down the road and keep making more empty promises to people, then we'll have the European kind of pain and austerity."
    Perhaps Ryan is simply trying to keep social issues out of the fiscal conversation. But he is obliged to bring in those social issues, which is he is doing to some extent. In his own words, he told Wallace this: "If you're 55 or older, you won't see changes. You won't have to reorient your lives around these things."
    Why is that, Congressman? Are you going to address the Constitutional issues that allowed these social issues to become funded in the first place? Or will a more leftist Congress at some future time be able to re-fund them? 

    Ending Federal programs that are not within the limitations of the Constitution is the first priority not only in preventing a future Congress to re-fund them, but to stop a future Congress from inventing new ones. If we address the Constitutional issues, the budget problems will go away on their own.

    I understand it is much easier to fix a budget in the short term, because fixing the Constitutional issues will require many long and ugly arguments, and make us face ourselves as people living under a normative set of laws that have been abnormally ignored and mis-interpreted, both legally and socially.

    It must be done. If it is not, this will be a never-ending story. But the story must end if you wish to see your budget cutting efforts succeed in the long run. Social issues are Constitutional in nature, when they are allowed to determine anti-Constitutional legislation.
 

© Curtis Edward Clark 2011

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Legislative Arguments vs Red Herrings

     The blurb under the title of this blog reads: "The Original Intent of the Framers was neither Conservative nor Republican. Rather, it was about Individual Sovereignty."
     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..."[1]
     But it doesn't seem to be individual sovereignty the Tea Party is calling for with its well-intentioned desire for large spending cuts. While larger cuts rather than smaller ones are better, with the eventual intent of once again balancing the budget, the specific cuts that are made are what are important. I have heard few specific suggestions or desires in this regard, with the exception of Obama-care.
    House Tea Party members renewed their support for cuts of $60 billion, in a press conference by Eric Cantor. The Democrats and Republicans seem to be meeting somewhere near $33 billion in cuts. Tea Partiers are calling for heads to roll in 2012 if the larger number isn't met.
    But it is a number that seems to have been pulled from thin air. Why $60 billion and not $600 billion? Perhaps it is only because the smaller number seems do-able. But it does nothing to help restore individual sovereignty.
    The fight ought to be about ending Federal programs that are not within the limitations of the Constitution, not about 'over spending'. If we actually had enough money and could balance the budget without cutting spending, would the Tea Party movement have two legs to stand on?
    What about stopping funding for things like the Environmental Protection Agency (EPA)? As I write this, "a congressional panel will hold a hearing on legislation — the “Energy Tax Prevention Act” – to stop.....the constitutional crisis created by EPA’s attempt to dictate climate policy to the nation. EPA can neither make climate policy nor amend the CAA without flouting the separation of powers."[2]
    How much money was spent to create these 18,000 pages of legislation? By the EPA's own estimates, the direct costs of implementation alone will be $65 billion--but how much did it cost to research, then author, this massive take-over of the American economy? The EPA acknowledges that its climate policy leads to “absurd results” that are contrary to congressional intent, with operating permits required of millions of non-industrial facilities such as office buildings, stores, restaurants, etc.
     Rep. Fred Upton (R-Mich.), and Rep. Ed Whitfield (R-Ky.) are sponsoring the Act. On a newscast I saw, after Upton was interviewed speaking about how the EPA has no Constitutional authority to do what it now proposes, a citizen opponent of the Act was blaming Upton for causing massive damage in the future, to the environment--by stopping the un-Constitutional actions of the EPA, if they are indeed found to be illegal.
     Did this citizen have a desire to allow the EPA to act un-Constitutionally? If she did not, the network pieced together their news with arguments that had nothing to do with each other; or her argument was a red-herring.
    We can ask why opponents use red-herring arguments; but a better question would be to ask why the networks pit such wrongful arguments against each other? Could the network in question not find someone who didn't have a red-herring to throw, someone who could speak to the question of Constitutionality?
     Congressmen and Senators do the same kind of arguing. "The basic idea is to 'win' an argument by leading attention away from the argument and to another topic."[3] Was it the intent of the network to lead the attention away from Upton's concern; or is it the general thinking of the opposition not to address the Congressmen's concerns, to lead the attention away from the fundamental questions on their own?
     Red-herring arguments seem to be typical of the Tea Party, as much as they are typical of most of Congress, and of State's legislatures. 'Spending cuts' that don't address the issue of why a particular budget item is wrong from the perspective of an American's individual sovereignty, is not going to win many converts. Sure, we can all support the cuts. But can we all support the particular reasons for the particular cuts?
    It would be to the benefit of the Tea Party advocates who actually understand what individual sovereignty is about, to advocate particular cuts based on the illegality of what is being funded.

[1] Kelly L. Ross in a review of 'American Sphinx, The Character of Thomas Jefferson', by Joseph J. Ellis
[2] Andrew Brietbart Presents Big Government
[3] The Nizkor Project   

© Curtis Edward Clark 2011

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Two Ways to Read With 'Original Intent'

     Monday I wrote, "There is a world of difference between 'original meaning' and 'original intent'. Until recently I was consciously unaware of the difference, though I kept running into descriptions of Originalism that seemed to contradict each other, and I didn't know why.
     We Originalists think the correct way of reading the Constitution is to ask what the Founders meant. But there are two versions of what they meant. There is the 'literal' reading, whereby "an historical literalist will see the militia [just as an example] of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century."[1] 
     But the Militia Act of 1903 designated the National Guard, (Organized Militia), as the nation's primary military reserve. But the 'militia' of men 17-45 was created by the Militia Act of 1792, five years after the creation of the Constitution. In 1787, the 'militia' was the entire body of civilians physically fit for military service and who wanted to volunteer. The Second Militia Act of 1792 (there were two) created the draft. So who and what are the independent militia of today, those people who store weapons and train for the day the U.S. is overrun by enemies, or for the day the Feds become the enemy?
     In 2010 the Supreme Court ruled they were individuals, whose right to bear arms applies to state and local gun control laws. Two years earlier the Court, in the the Heller case, addressed only federal laws. But the rulings only address private ownership in a household; they do not address what particular laws may redress local and State needs for some controls; that issue was sent back to the lower courts to decide.
     Problems with Originalist readings come in several forms: 
     A) do we understand the written document as the Framers understood it--in their terms? For example, the right to bear arms could not have meant an Uzi or an M11 machine gun, if they knew of such things?
     B) Since they did not know of such things, how do we know what they would have said once they were told? Alexander Hamilton said in 1788, four years before the first Militia Act by Congress, that if "circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."[2]  
     Thus, by the words of the strongest Federalist Founder who sought to expand government powers, "the body of citizens" should be only little inferior, if any at all, to the powers of any government army who might then be able to be used against them. But Hamilton could not foresee rocket launchers and surface-to-air and cruise missiles.
     C) And so, if we are not meant to understand the written document as the they understood it in their frame of reference to the specifics of their existence at that time, then we must find in their other writings what they meant in principle.
    Jack M. Balkin[3] argues "that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not. . .
     "For example, the ban on 'cruel and unusual punishments' requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual."
     Originalism, then, is not so specifically about how Jefferson or Madison or Patrick Henry would have applied their idea to our modern problems; that is what is called 'original expected application'. 
     Rather, we need to understand the contextual and common meaning of the words the Founders used, and apply those meanings, whether the meanings have changed or not, whether we now use different words or not. We need to understand the intent of what they said, called 'original public meaning', and apply that as the Founders' 'original intent'.

[1] http://www.usconstitution.net/consttop_intr.html

[2] Federalist, No. 29

[3] Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School



© Curtis Edward Clark 2011
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