President Obama's stance, indeed the stand of anyone who is against ownership of guns or of specific guns and/or of specific bullets, clips, or other portions of guns, are acting as utilitarians. This is against the concept of natural rights inherent in the Constitution.
Opponents of such restrictions are fighting it on grounds of the Second Amendment. But they are fighting on the grounds that it is that Amendment which gives us the right. It is not. That merely states the right which existed before it was written. Indeed, James Madison and others were fearful that if some of man's natural rights were put into a Bill of Rights, it would seem as if that was the limit of them, that there were no others. But more than that, many members of Congress knew that by listing some of them it would open them to scrutiny 'as written'. In other words, while all natural rights belonged to Man, the way one or another was written could be argued against and altered.
That has happened in the modern case of the Second Amendment. The right does not exist because it is written; it was written because it exists, and because some Congressional leaders believed it necessary to say they existed.
A Bill of Rights was not only unnecessary, but would even be dangerous. James Madison agreed with Alexander Hamilton, who asked, "For why declare that things shall not be done which there is no power to do [by
Congress]? Why, for instance,
should it be said that the liberty of the press shall not be
restrained, when no power is given by which restrictions may be imposed?"
The harming of another in his person or property is not a right, natural or otherwise. The restriction of a natural right is the prerogative only of a tyranny.
© Curtis Edward Clark 2012
Showing posts with label Congress. Show all posts
Showing posts with label Congress. Show all posts
Tuesday, January 15, 2013
Wednesday, August 15, 2012
Is There Originalism in the Tea Party?
Now that fiscal conservative Paul Ryan has been chosen as Mitt Romney's choice for VP, I think this is a good time to republish this article from last year. There seem to be many who think that because Ryan says he is a fan of Ayn Rand, that it means he is automatically some sort of laissez-faire radical. The fact is that in a recent FOX interview with Britt Hume, Ryan stated Rand had inspired him, but that that he is 'opposed' to her 'atheistic philosophy'. That is certainly not a rejection of her philosophy, but only of her atheism, because her atheism did not propel her economics or her support of individual sovereignty. But Paul Ryan is no Objectivist, any more than Alan Greenspan, who walked away from his Objectivist roots before he took the job of Chair of the Federal Reserve.
A good reference about this subject is at The Objective Standard, a publication that does not appear to be associated with any other Rand-oriented institutions.
I am not ready to say whether or not anyone in the Tea Party has Originalist interpretations which they have or have not stated. I just don't know, yet. I questioned the office of Ron Paul, and the office of a locally-elected member of Congress, but as yet have gotten no response from either office. [And I never did.]
In March of 2010 the New York Times published an article about the lack of social issues in the Tea Party agenda. "The motto of the Tea Party Patriots, a large coalition of groups, is 'fiscal responsibility, limited government, and free markets.'....But the focus is also strategic: leaders think they can attract independent voters if they stay away from divisive issues."
In December of 2010 Suite 101 published this: "The Tea Party is a grass-roots movement in favor of smaller government, fiscal conservation, and an originalist interpretation of the Constitution."
The Atlantic said Tea Party members are "by and large, social conservatives, not social libertarians," and "In fact, it seems that the main intellectual solution offered, and problem posed, by the Tea Party movement is the connection between government spending and personal liberty."
That, for me, is the rub, especially if it is true--that the Tea Party sees their freedom only (or mostly) in fiscal conservatism, rather than in uprooting the anti-Constitutional legislation of coercion that has been allowed to survive not only debate, but to survive through various courts including the Supreme Court.
Why is it OK for members of the Tea Party to authorize or approve the spending of money on the dole if it is simply less money, enough less to make them happy to spend any at all? In other words, why is it OK to spend $5 trillion on Medicaid if it isn't OK to spend $15 trillion? Why is it OK to spend $500 million on a State's food stamp program, when they don't think its OK to spend $900 million? Where (and why) does the subjective line exist?
It is a subjective line, because there should be no line. Charity exists where charity is felt, not by local or State officials who have no right to redistribute what Peter has to feed Paul. It exists where concerned individuals and charitable institutions exist to feed, clothe, house, and give medical care to 'Paul'. That would be an Originalist interpretation, not necessarily on all government charity, but on such programs as social security, which is enforced on both employees and employers, yet which pays so little after retirement that anyone living only from that finds themselves in the poor column when compared to their wage-earning or pension-earning neighbors.
It wouldn't make it 'more Constitutional' if they were not in the poor column of government recipients. If our society was geared toward finding the solution to retirement income that is neither forced upon employees nor employers, a solution that does not redistribute wealth nor force anyone to set aside money but rather sets high standards of inducement for saving toward retirement, then the Constitutionality of such inducements would be the question.
But it is a Constitutional issue when only the cost/benefit ratio, or even simply the cost itself, is at issue rather than the law which makes the matter an issue to begin with.
The Tea Party needs its Originalists to step forward, take at least some of the reins, and steer the party, slowly-but-surely if slowly is necessary, toward the Founding ideas, rather than just in the direction of subjective and very temporal ideas, ideas that change as the political pendulum swings. The 'grass roots' represented by the Tea Party should be more substantive than to be simply fiscally conservative.
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© Curtis Edward Clark 2012
Wednesday, August 1, 2012
TP Originalism Exists On the Back Burner
This blog originally appeared April, 2011
Something I managed to miss concerning any connections between the Tea Party and Originalism was this:
Something I managed to miss concerning any connections between the Tea Party and Originalism was this:
No, I knew about the Opening Session--the one where they read the amended Constitution that omitted the part about slavery. The part I missed was about Constitutional originalism being 'all the rage these days'.Constitutional originalism is all the rage these days. In Congress, the new Republican House majority opened the session with a reading of the Constitution and a requirement that every proposed bill cite the specific constitutional authority on which it relies.[1]
But I actually did miss this piece of information: "[Michele] Bachmann even brought Antonin Scalia to a seminar on the Constitution for members of Congress, where the Supreme Court justice instructed members to read the Federalist Papers and follow the framers' original intent."[2]
Sheila Kennedy commented on that article by David Shultz: "It's the sort of article that should be read by the very folks who won’t read it, because it actually takes one of the Tea Party’s avowed purposes—constitutional originalism—seriously. It’s hard not to see similarities between the way so many of these 'God and Country' zealots read the Constitution and the way they read the bible—very selectively."
Which brings me to an important point. Tea Party Originalism as a populist movement "that is decried in [Jill] Lepore’s work [as] the use of history that is '[s]et loose in the culture, tangled with fanaticism,” and designed to look 'like history, but it’s not.'"[3]
Is this entirely true? As the co-author of a new book on the Ninth and Tenth Amendments, Thomas McAfee says "I can say confidently that the new national health care system does not produce a 'government take over' of the health care system, let alone of the entire economy. [ ] If Congress was not empowered to pass national health care reform, it is difficult to conceive how it could have been empowered to enact the law establishing Medicare."
What I'm thinking is, "Really, Professor McAfee? You don't see where 20th century Progressivism might have had something to do with it?" Tibor Machan[4] pointed out to me that McAfee's belief is possible because Article 1, Section 8, the interstate commerce clause
The point is this: there is much more Originalist thinking going on in the minds of the Tea Partiers than they they have been given credit for, but much of it may be faulty. I discovered many more links on the internet to the TP and Originalism than were referenced above.
But it seems that won't be happening in the Tea Party Patriots. I commented on their site that "The Tea Party needs its Originalists to step forward, take at least some of the reins, and steer the party, slowly-but-surely if slowly is necessary, toward the Founding ideas, rather than just in the direction of subjective and very temporal ideas, ideas that change as the political pendulum swings. The 'grass roots' represented by the Tea Party should be more substantive than to be simply fiscally conservative."
The response I got from someone named 'McFixit1' was, "That is going on behind the scenes. The state Coordinators and the Admin get together every week to refine the direction and the cause celebre' so to speak based on the genreal (sic) concensus (sic) of opinion of the general membership. Right now the focus is directed towards everything we need to accomplish to win the 2012 election and remove every Progressive running from office. My Opinion, is that the leadership believes the members can make better value judgments on a local level."
So, if McFixit1 speaks for others, (there were no other responses but his, so can I presume he speaks for others?) the idea is to forget principles, subjectively reduce spending, then replace "their guys" with "our guys".
Good plan.
Which brings me to an important point. Tea Party Originalism as a populist movement "that is decried in [Jill] Lepore’s work [as] the use of history that is '[s]et loose in the culture, tangled with fanaticism,” and designed to look 'like history, but it’s not.'"[3]
Is this entirely true? As the co-author of a new book on the Ninth and Tenth Amendments, Thomas McAfee says "I can say confidently that the new national health care system does not produce a 'government take over' of the health care system, let alone of the entire economy. [ ] If Congress was not empowered to pass national health care reform, it is difficult to conceive how it could have been empowered to enact the law establishing Medicare."
What I'm thinking is, "Really, Professor McAfee? You don't see where 20th century Progressivism might have had something to do with it?" Tibor Machan[4] pointed out to me that McAfee's belief is possible because Article 1, Section 8, the interstate commerce clause
"has been misinterpreted by many legislators and justices as if the term 'regulate' meant 'regiment' instead of 'regularize,' its original intended meaning."When I pointed out the McAfee seemed to be dancing around that fact, Machan went on to write that McAffee was stating conventional wisdom in the "post-New Deal era" of constitutional jurisprudence. "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[5]
The point is this: there is much more Originalist thinking going on in the minds of the Tea Partiers than they they have been given credit for, but much of it may be faulty. I discovered many more links on the internet to the TP and Originalism than were referenced above.
But it seems that won't be happening in the Tea Party Patriots. I commented on their site that "The Tea Party needs its Originalists to step forward, take at least some of the reins, and steer the party, slowly-but-surely if slowly is necessary, toward the Founding ideas, rather than just in the direction of subjective and very temporal ideas, ideas that change as the political pendulum swings. The 'grass roots' represented by the Tea Party should be more substantive than to be simply fiscally conservative."
The response I got from someone named 'McFixit1' was, "That is going on behind the scenes. The state Coordinators and the Admin get together every week to refine the direction and the cause celebre' so to speak based on the genreal (sic) concensus (sic) of opinion of the general membership. Right now the focus is directed towards everything we need to accomplish to win the 2012 election and remove every Progressive running from office. My Opinion, is that the leadership believes the members can make better value judgments on a local level."
So, if McFixit1 speaks for others, (there were no other responses but his, so can I presume he speaks for others?) the idea is to forget principles, subjectively reduce spending, then replace "their guys" with "our guys".
Good plan.
[2] Salon "What 'original intent' would look like": David Shultz
[3] Thomas McAfee ; McAfee Machinations: Taking the Constitution Seriously
[4] Tibor Machan or this. See also 'Recommended Reading' list, left side column
[5] personal correspondence
© Curtis Edward Clark 2012
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[3] Thomas McAfee ; McAfee Machinations: Taking the Constitution Seriously
[4] Tibor Machan or this. See also 'Recommended Reading' list, left side column
[5] personal correspondence
© Curtis Edward Clark 2012
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Friday, July 27, 2012
The Extension and Intension of the Constitution
We must begin this discussion with the definition of the words in the title:
"The intension of a concept consists of the qualities or properties which go to make up the concept. The extension of a concept consists of the things which fall under the concept; or, according to another definition, the extension of a concept consists of the concepts which are subsumed under it (determine subclasses)" source
The intension of the Constitution is, therefore, the qualities or properties which go to make up the concept. What is the concept? It is supremely simple, and in two parts: the first quality is that of a government more able to deal with national problems than the Articles of Confederation allowed for; and the second property was to make a government less able to violate the rights of minorities. The second quality was the biggest intensional concern of James Madison, Patrick Henry and others, and it is the one that has seen its extensions go awry, since the era of the New Deal.
The extensional parts are the subclasses of the intensions; they are the things which 'fall under' the concept(s). Article 1, Section 2 explaining the composition of the Congress, is therefore an extension of Section 1, explaining that there shall be a Senate and a House.
"The Constitution does not give you rights," explains the Constitutionality Crisis. "The founders considered your rights to be 'God-given' or 'natural rights' — you are born with all your rights. The constitution does, however, protect your rights by:
But more than that, our coveted Bill of Rights are the extensions of the entire concept for the limitation of the powers of government, and the empowerment of the individual. "The whole of the Bill is a declaration of the right of the people at large or considered as individuals…It establishes some rights of the individual as unalienable and which consequently, no majority has the right to deprive them of." –Albert Gallatin, 1789, New York Historical Society
The original statements of the Founders give us their intent for ratifying the words they used. Why did they say this, and say it that way instead of the other way or another way? But epistemological intension is like a definition of a genus, whereas extension is like the definition of a species. The genus of the Constitution is that of a document never seen before then, one that had two part, the way 'man' is defined as 'rational animal'. The two parts are to be an enabler of individualism, and a limiter of government.
Madison warned us of wrongful extensions of the limited powers given to government, and named many that we see today. Congress might, he said, "establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress [ ] and might be called, if Congress pleased, provisions for the general welfare."
These things are so commonplace that we do not even think about some of them as being usurpations by the nation upon the powers of the States; or worse, usurpations on your individual sovereignty, which was a commonly held extension of the purpose of the limitation on government.
Next Friday I will examine some others in detail.
© Curtis Edward Clark 2012
"The intension of a concept consists of the qualities or properties which go to make up the concept. The extension of a concept consists of the things which fall under the concept; or, according to another definition, the extension of a concept consists of the concepts which are subsumed under it (determine subclasses)" source
The intension of the Constitution is, therefore, the qualities or properties which go to make up the concept. What is the concept? It is supremely simple, and in two parts: the first quality is that of a government more able to deal with national problems than the Articles of Confederation allowed for; and the second property was to make a government less able to violate the rights of minorities. The second quality was the biggest intensional concern of James Madison, Patrick Henry and others, and it is the one that has seen its extensions go awry, since the era of the New Deal.
The extensional parts are the subclasses of the intensions; they are the things which 'fall under' the concept(s). Article 1, Section 2 explaining the composition of the Congress, is therefore an extension of Section 1, explaining that there shall be a Senate and a House.
"The Constitution does not give you rights," explains the Constitutionality Crisis. "The founders considered your rights to be 'God-given' or 'natural rights' — you are born with all your rights. The constitution does, however, protect your rights by:
- Limiting the powers of government by granting to it only those specific powers that are listed in the Constitution; (This has not proven to be effective of late.)
- Enumerating certain, specific rights which you retain. These are listed in the Bill of Rights." [emphasis in original]
But more than that, our coveted Bill of Rights are the extensions of the entire concept for the limitation of the powers of government, and the empowerment of the individual. "The whole of the Bill is a declaration of the right of the people at large or considered as individuals…It establishes some rights of the individual as unalienable and which consequently, no majority has the right to deprive them of." –Albert Gallatin, 1789, New York Historical Society
The original statements of the Founders give us their intent for ratifying the words they used. Why did they say this, and say it that way instead of the other way or another way? But epistemological intension is like a definition of a genus, whereas extension is like the definition of a species. The genus of the Constitution is that of a document never seen before then, one that had two part, the way 'man' is defined as 'rational animal'. The two parts are to be an enabler of individualism, and a limiter of government.
Madison warned us of wrongful extensions of the limited powers given to government, and named many that we see today. Congress might, he said, "establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress [ ] and might be called, if Congress pleased, provisions for the general welfare."
These things are so commonplace that we do not even think about some of them as being usurpations by the nation upon the powers of the States; or worse, usurpations on your individual sovereignty, which was a commonly held extension of the purpose of the limitation on government.
Next Friday I will examine some others in detail.
© Curtis Edward Clark 2012
Monday, May 2, 2011
Health Care and the Supremacy Clause
"State governments are pushing back reasserting federalism as the Founders intended them to do," said the Attorney General of Virginia, Ken Cuccinelli."Virginia was the first state to argue in federal court that the new health car law is unconstitutional.....[A] legal expert said our case relied on a 'controversial reading of the Constitution.' Apparently it is controversial to apply the Constitution as it was written." [1]
The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.
Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.
"Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]
As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence. "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]
But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."
Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?
This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]
Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:
"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."[6]
The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."
It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.
But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.
I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.
Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.
[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness
The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.
Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.
"Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]
As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence. "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]
But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."
Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?
This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]
Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:
"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."[6]
The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."
It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.
But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.
I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.
Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.
[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness
© Curtis Edward Clark 2011
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Friday, April 8, 2011
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?
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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?
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Monday, April 4, 2011
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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"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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Monday, March 21, 2011
The Ninth Amendment, Liberals, and Conservatives
On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
© Curtis Edward Clark 2011
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Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."*1 2 3 4
© Curtis Edward Clark 2011
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Friday, March 18, 2011
What is Allegiance to the "United States"
Allegiance to the government of the United States is not the same as allegiance to the State of which one is a legal resident. Article XIV, adopted in 1868, states that everyone who is born a citizen or is naturalized and who is subject to the jurisdiction of United States "are citizens of the United States."
"The citizen was not, under the theory of States' rights, in contact with the National Government. He owed allegiance to his State, and the State dealt with the Nation. That theory was definitely set aside by [the Fourteenth] Amendment." *
Americans now owed allegiance to both authorities. Congressman John Bingham was the principal author of Section One of the Fourteenth Amendment, the part with the words "citizen of the United States". "The phrase 'citizen of the United States' had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories." Original Intent.org
We unintentionally created what would become a behemoth national government, and it was entirely within the purview of the original Constitution because we had amended the original Constitution. But did creating 'national powers' within the 'federal' government automatically give it the broad powers it has today, with hundreds of federal agencies allowed to make law, and the President allowed to make legally binding executive orders, when the first sentence in the Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"?"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." John C. Calhoun
Federal powers began to expand, says Doug Fiedor, in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice." In that case, Chief Justice Marshall therefore denied that the delegation [of those powers] was impermissible," and "In 1940, that power was even written into law."
In future blogs, I will continue to explain how federal expansionism became unlawfully practiced.
For now it is enough to say that when I pledge allegiance to the United States, it is not the nation that James Madison and the other signers of the Constitution conceived, nor the same federal government that Calhoun described. It is a nation in which both parties conceive of positive rights as an extension of their Fourteenth Amendment duty to protect (and further define) the 'citizen of the United States'.
The defining of such a citizen' should have been severely limited, by by then it was too late to stop the national train.
* All asterisks in this post refer to my favorite pre-WWII reference on the Constitution: Constitution of the United States; Its Sources and Application; Thomas J. Norton, copyright 1943
Monday, March 7, 2011
Congress and Absolutes
I answer questions in philosophy and in history in Yahoo's Q&A forum called Yahoo! Answers. Recently, someone asked how "the good" should be defined in terms of "context". Here is my answer:
Yet, Rand was a vocal, ardent, and radical advocate for the sanctity of human life. "Individualism," she wrote, echoing Locke and Jefferson and Madison and others, "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." But, to keep this situation of "what is the good" in context, she also wrote this:
If individual rights are the means of subordinating society to moral law, then it was moral to kill the soldier who couldn't make a soldierly decision, in order to save the hero who wanted the evil government to be subordinate to moral law--which they were not.
Now, that is a long example. But it is one that is rarely understood about that novel. And since it was written by an advocate of absolute human rights, it puts "absolute rights" into context--save the hero, or let the villains have their way.
This concept of "absolutism" is something the Tea Party as a whole doesn't comprehend any better than a Progressive, whether a Republican, or a Democrat. There are no absolutists in Congress, save a few who are absolute only on one or two specific issues, but not broadly and fully, and in context of what "absolute Originalist reading of the Constitution" means.
While there is room for debate even in an Originalist reading, there is no debate that it is a document of negative liberty, not of positive liberty. If there is any member of Congress who you can envision as a hero in an Ayn Rand novel, he or she may be one of those who holds to an absolute idea here and there--but I'll bet s/he couldn't explain why s/he believes it to be an 'absolute'.
© Curtis Edward Clark 2011 Visit the Atheist-AA Google Group http://groups.google.com/group/atheist-aa
A good example is in Ayn Rand's novel Atlas Shrugged, in which a hero point-blank shoots to death a military soldier--because he can't make the decision to let her have the prisoner (even though the soldier knows she is trusted by the government)--or adhere to the orders he was given to keep the prisoner, who he, the soldier, knows absolutely is being tortured in secret.The man being tortured is also one of the heroes and is being rescued. The soldier doesn't even say "Yes" or "No"; he is confused, unfocused, hoping for, you might say, a sign from the heavens about what to do--and the hero had a gun pointed right at him, but he can't make up his mind. So she shoots him dead.
Yet, Rand was a vocal, ardent, and radical advocate for the sanctity of human life. "Individualism," she wrote, echoing Locke and Jefferson and Madison and others, "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." But, to keep this situation of "what is the good" in context, she also wrote this:
"Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics.The soldier could not decide which action to take, and while the gun was obviously a coercion, so was his gun, which if he had time he would have pointed at the hero. The soldier was violating the first paragraph, about individual sovereignty, by keeping the prisoner who was being tortured. You might ask, why was he being tortured? Because he was the good guy, and the bad guys (the government in this novel) wanted the tortured hero to work for them. The soldier had to have known this.
If individual rights are the means of subordinating society to moral law, then it was moral to kill the soldier who couldn't make a soldierly decision, in order to save the hero who wanted the evil government to be subordinate to moral law--which they were not.
Now, that is a long example. But it is one that is rarely understood about that novel. And since it was written by an advocate of absolute human rights, it puts "absolute rights" into context--save the hero, or let the villains have their way.
This concept of "absolutism" is something the Tea Party as a whole doesn't comprehend any better than a Progressive, whether a Republican, or a Democrat. There are no absolutists in Congress, save a few who are absolute only on one or two specific issues, but not broadly and fully, and in context of what "absolute Originalist reading of the Constitution" means.
While there is room for debate even in an Originalist reading, there is no debate that it is a document of negative liberty, not of positive liberty. If there is any member of Congress who you can envision as a hero in an Ayn Rand novel, he or she may be one of those who holds to an absolute idea here and there--but I'll bet s/he couldn't explain why s/he believes it to be an 'absolute'.
© Curtis Edward Clark 2011 Visit the Atheist-AA Google Group http://groups.google.com/group/atheist-aa
Monday, March 8, 2010
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.
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.
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