Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts
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
Tuesday, August 7, 2012
Goulash Collectivism in the US
It doesn't matter how large government becomes, when it's doing only what is proper to its powers according to the Constitution.
'Goulash collectivism' is the hodge-podge of the various political policies we live under, from LBJ's 'Great Society', from FDR's government employment of the unemployed, from JFK's altruistic "ask what you can do for your country"; to social security, to unending unemployment payments, to phony 'green' energy programs that destroy the oil and coal industries we still depend on, to our new insurance program of 'buy-it-or-get-taxed-for-not-doing-it' policy, to the over-all dogged and ferocious meddling by government in our lives.
That we are employing this goulash collectivism "is not just a fringe view," wrote Mark Trumbull, in The Christian Science Monitor. In a poll, "A majority said it should not be the government's role to redistribute wealth, and a majority said they prefer 'a smaller government providing less services'."
No, it is not just a fringe view, though it may be said that it isn't the left wing progressives who are going to admit it. But it is odd how those progressives can turn and twist the message of prior leaders to fit their own agenda. President Lincoln, said President Obama last year, told us "that through government, we should do together what we cannot do as well for ourselves." He wanted to establish that the redistribution of wealth (his words, not mine) was something we cannot do at all for ourselves--as if it was something that ought to be done in the first place.
While we should not even be trying to do such a thing for ourselves, should we doing it through government, and should a political leader turn the words of other leaders into what they were not meant to say? The things that people "cannot do, or cannot well do, for themselves, fall into two classes," Lincoln said. The first class "embraces all crimes, misdemeanors and non-performance of contracts. The other embraces all which...requires combined action, as public roads and highways, public schools, charities, pauperism, orphanage, estates of the deceased, and the machinery of government itself."
In the last few years the case has been made that Lincoln was a socialist. Even the politically libertarian Congressman Ron Paul has gotten into that act. But it is clear from the quote that our current President used Lincoln's words out of context. Lincoln also said, "I believe that every individual is naturally entitled to do as he pleases with himself and the fruits of his labor, so far as it in no way interferes with any other men’s rights." That is libertarianism, not socialism; it upholds the Ninth Amendment and the idea of individual sovereignty.
It's clear that the progressives could throw as many progressive-sounding quotes from Lincoln as anyone else could throw freedom-loving quotes, but it is another thing altogether to use a quote out of context.
"Because it is right, because it is wise, and because, for the first time in our history, it is possible to conquer poverty," LBJ told us to justify his meddling. Through his "Economic Opportunity Act of 1964" he began to transfer money from those who had, to those who had not, from "each according to his ability, to each according to his need," just as Marx said ought to be done.
This is not the original purpose of any part of the Constitution, as described by any of the Founders, yet the poverty of those who receive it no worse than it was in 1776--except in comparison to those who are not impoverished. Poor is poor. Yet, the poverty guidelines for 2012 are $11,170 for an individual, while the average income for all Americans is $47,000. So 'poor' is measured as one-quarter of the average, while in the first years of our nation one-quarter of the average would have been a God-send. And yet James Madison said, "Charity is no part of the legislative duty of the government." He saw the black-and-white of the meaning of the Constitution.
Thomas Jefferson, forecasting what Marx would later say was the proper thing, was more more on the moral mark than Madison, when he wrote, "To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”
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© Curtis Edward Clark 2012
'Goulash collectivism' is the hodge-podge of the various political policies we live under, from LBJ's 'Great Society', from FDR's government employment of the unemployed, from JFK's altruistic "ask what you can do for your country"; to social security, to unending unemployment payments, to phony 'green' energy programs that destroy the oil and coal industries we still depend on, to our new insurance program of 'buy-it-or-get-taxed-for-not-doing-it' policy, to the over-all dogged and ferocious meddling by government in our lives.
That we are employing this goulash collectivism "is not just a fringe view," wrote Mark Trumbull, in The Christian Science Monitor. In a poll, "A majority said it should not be the government's role to redistribute wealth, and a majority said they prefer 'a smaller government providing less services'."
No, it is not just a fringe view, though it may be said that it isn't the left wing progressives who are going to admit it. But it is odd how those progressives can turn and twist the message of prior leaders to fit their own agenda. President Lincoln, said President Obama last year, told us "that through government, we should do together what we cannot do as well for ourselves." He wanted to establish that the redistribution of wealth (his words, not mine) was something we cannot do at all for ourselves--as if it was something that ought to be done in the first place.
While we should not even be trying to do such a thing for ourselves, should we doing it through government, and should a political leader turn the words of other leaders into what they were not meant to say? The things that people "cannot do, or cannot well do, for themselves, fall into two classes," Lincoln said. The first class "embraces all crimes, misdemeanors and non-performance of contracts. The other embraces all which...requires combined action, as public roads and highways, public schools, charities, pauperism, orphanage, estates of the deceased, and the machinery of government itself."
In the last few years the case has been made that Lincoln was a socialist. Even the politically libertarian Congressman Ron Paul has gotten into that act. But it is clear from the quote that our current President used Lincoln's words out of context. Lincoln also said, "I believe that every individual is naturally entitled to do as he pleases with himself and the fruits of his labor, so far as it in no way interferes with any other men’s rights." That is libertarianism, not socialism; it upholds the Ninth Amendment and the idea of individual sovereignty.
It's clear that the progressives could throw as many progressive-sounding quotes from Lincoln as anyone else could throw freedom-loving quotes, but it is another thing altogether to use a quote out of context.
And what is really out of context is a debate over the size of government versus its proper purposes, as were described by Lincoln. If a government is doing only what is proper to it according to the Constitution, it doesn't matter how large it becomes. If the Federal and State governments were doing only what is proper and Constitutional, governments would be larger than they are now if we had the same number of citizens as mainland China.Yet, the very things that progressives advocate are social programs which Originalist readings show the Founders were entirely against. Until the "Affordable Health Care for America Act" was passed, the biggest social overhaul of government services and of social justice programs was the Great Society, the various acts passed by the progressive President Lyndon Johnson. His anti-poverty program was the most far-reaching piece of socialism in US history.
"Because it is right, because it is wise, and because, for the first time in our history, it is possible to conquer poverty," LBJ told us to justify his meddling. Through his "Economic Opportunity Act of 1964" he began to transfer money from those who had, to those who had not, from "each according to his ability, to each according to his need," just as Marx said ought to be done.
This is not the original purpose of any part of the Constitution, as described by any of the Founders, yet the poverty of those who receive it no worse than it was in 1776--except in comparison to those who are not impoverished. Poor is poor. Yet, the poverty guidelines for 2012 are $11,170 for an individual, while the average income for all Americans is $47,000. So 'poor' is measured as one-quarter of the average, while in the first years of our nation one-quarter of the average would have been a God-send. And yet James Madison said, "Charity is no part of the legislative duty of the government." He saw the black-and-white of the meaning of the Constitution.
Thomas Jefferson, forecasting what Marx would later say was the proper thing, was more more on the moral mark than Madison, when he wrote, "To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”
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© Curtis Edward Clark 2012
Thursday, August 2, 2012
Intension and Extension, Part 2
The 'intension' of any idea consists in the qualities or properties that are the substance[1] of the idea. See the first part in this series. For example, the Constitution, Article. I.Section. 1. states that "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." Taken in its entirety, the 'substance' of the Section is legislative powers, and what they shall be vested in.
Any 'extension' of an idea is dependent on the 'intension' for its substance. Section 2. states, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and in the substance of that there is no 'extension' of any idea that those elected cannot be women or blacks--nor, for that matter, Catholics or Muslims or "Hindoos", as Thomas Jefferson spelled it.
So for all practical purposes, 'intension' is the same as someone's 'intentions'; it merely has a semantic difference in the way philosophers of law use the word. The intension is necessarily in the words and syntax, if you are a textualist (also called a constructionist, from the 'construction' of the clauses and sentences.)
If you are an originalist, the intension is more likely to be in the meaning of those words and that syntax as they were meant when the text was written. That is called original expected application. If on the other hand you are of the belief that the intension should be based on what reasonable persons living at the time of its adoption would have said was the meaning, that is called original public meaning. The problem between these forms of originalism is that the writers of the Constitution, and those who took part in the debates, wrote extensively both before and after it was written. If you read what they wrote and you abide by what they wrote, you might be adopting original application, or you might be following the original public meaning. Reasonable persons living at the time were very well versed in what their intellectuals had to say. And many of those intellectuals said the intension was in the text, so that textualism and both forms of originalism melt into one when we try to interpret the Constitution.
"Originalism tends to favor a narrower definition of civil liberties than modernism does, so it generally permits more authoritarian laws," states a popular website. Obviously this is wrong, because the entire purpose of the Constitution was the promotion of the 'general Welfare' without infringing upon what all 'reasonable persons at the time' believed was the individual sovereignty of the individual. But it may be a common belief because since the time of at least the New Deal, Americans have been taught by their leaders that our Constitution was meant to guarantee 'positive' rights, that is grants, the creation of what does not exist under natural law; in other words, entitlements, not just of money, but of 'social justice'.
The belief in individual sovereignty was not a 'peculiar conceit' of Thomas Jefferson; rather, it was "the common assumption of the day." Jefferson himself has often been described as a strict constructionist, yet his thoughts on the proposed and real extensions of his time are used by originalists of both types, and by textualists.
It is true that individual sovereignty was commonly acknowledged. Sam Adams wrote that he feared misinterpretation of the Constitution would grow the power of the Federal government at the expense of the States and "sink both in despotism." "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone, "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state."
Positive rights are extensions of the Constitution if you interpret it as a 'living document', meant to be read in the context of a modern world. Even then, you must ignore what those who lived during that period knew was the intent of the Framers--because the Framers told them their intent.
The only 'modern' part of the extensions since the New Deal (and some before that) is the loss of individualism in favor of authoritarianism, not the reverse as the quote above states.
[1] that by virtue of which a thing has its determinate nature source
© Curtis Edward Clark 2012
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Any 'extension' of an idea is dependent on the 'intension' for its substance. Section 2. states, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and in the substance of that there is no 'extension' of any idea that those elected cannot be women or blacks--nor, for that matter, Catholics or Muslims or "Hindoos", as Thomas Jefferson spelled it.
So for all practical purposes, 'intension' is the same as someone's 'intentions'; it merely has a semantic difference in the way philosophers of law use the word. The intension is necessarily in the words and syntax, if you are a textualist (also called a constructionist, from the 'construction' of the clauses and sentences.)
If you are an originalist, the intension is more likely to be in the meaning of those words and that syntax as they were meant when the text was written. That is called original expected application. If on the other hand you are of the belief that the intension should be based on what reasonable persons living at the time of its adoption would have said was the meaning, that is called original public meaning. The problem between these forms of originalism is that the writers of the Constitution, and those who took part in the debates, wrote extensively both before and after it was written. If you read what they wrote and you abide by what they wrote, you might be adopting original application, or you might be following the original public meaning. Reasonable persons living at the time were very well versed in what their intellectuals had to say. And many of those intellectuals said the intension was in the text, so that textualism and both forms of originalism melt into one when we try to interpret the Constitution.
"Originalism tends to favor a narrower definition of civil liberties than modernism does, so it generally permits more authoritarian laws," states a popular website. Obviously this is wrong, because the entire purpose of the Constitution was the promotion of the 'general Welfare' without infringing upon what all 'reasonable persons at the time' believed was the individual sovereignty of the individual. But it may be a common belief because since the time of at least the New Deal, Americans have been taught by their leaders that our Constitution was meant to guarantee 'positive' rights, that is grants, the creation of what does not exist under natural law; in other words, entitlements, not just of money, but of 'social justice'.
The belief in individual sovereignty was not a 'peculiar conceit' of Thomas Jefferson; rather, it was "the common assumption of the day." Jefferson himself has often been described as a strict constructionist, yet his thoughts on the proposed and real extensions of his time are used by originalists of both types, and by textualists.
It is true that individual sovereignty was commonly acknowledged. Sam Adams wrote that he feared misinterpretation of the Constitution would grow the power of the Federal government at the expense of the States and "sink both in despotism." "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone, "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state."
Positive rights are extensions of the Constitution if you interpret it as a 'living document', meant to be read in the context of a modern world. Even then, you must ignore what those who lived during that period knew was the intent of the Framers--because the Framers told them their intent.
The only 'modern' part of the extensions since the New Deal (and some before that) is the loss of individualism in favor of authoritarianism, not the reverse as the quote above states.
[1] that by virtue of which a thing has its determinate nature source
© Curtis Edward Clark 2012
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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
Wednesday, July 25, 2012
Obama and Charity
"What is going to become of our charities if almost 33% of it dries up simply because of Washington's policies?"
Doesn't the 'general welfare' clause of the Constitution mean that the Federal government is empowered to dole out charity? James Madison, the principle author of the Constitution, said that the welfare clause is "qualified by the detail of powers (enumerated in the Constitution) connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." [emphasis added]
"I cannot find any authority in the Constitution for public charity. [To approve the measure] would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."
President Franklin Pierce's 1854 veto of a measure to help the mentally ill
There are dozens of direct references to charity and other welfare by the Founders. And it is clear from the hundreds of other references they made about the meaning of this or that word or clause of the Constitution exactly what was intended when they wrote it. But one thing is undeniably clear about Americans: they are willing to see the 'spirit of the law' in the letter of the law, and usually it is not a 'spirit' put there, nor accepted, by the people who gave it to us.
"Until the New Deal era [charity] was known not to be an enumerated power nor one reasonably implied by the 'necessary and proper' clause and therefore considered unconstitutional. Yet around the time of the New Deal, government began overlooking this clear unconstitutionality" Is Welfare Unconstitutional?
"The fiscal year 2013 White House budget specifies that the federal tax deduction for charitable contributions be reduced to a maximum of 28% for married couples with income over $250,000, and single individuals with incomes over $200,000." source
But that White House policy is harmful. In 2009, 89% percent of American households gave an average of $1,620 to charity annually; it was $308 billion in 2008, accounting for 2.2 percent of our GNP), higher than any other country in the world. "This clearly shows America does not have a charity problem--and shows that Americans are fully capable of giving away their own money to good causes." source
Now compare that to the FY2013 Budget, in which we clearly see that Mr. Obama would prefer the Federal government be the major contributor to the health and welfare of Americans:
"This budget would reduce the value of the charitable deduction for certain individuals, effectively subjecting them to pay taxes on money that they give to charity instead of using it to benefit themselves. [G]iving by households with $200,000 or more in income would have decreased by $820 million in 2009 and by $2.43 billion in 2010 had the administration’s proposal been in effect." source [emphasis added]
"Before the Sept. 11, 2001, terrorist attacks, which led to nearly $3 billion in donations for victims' families, donations because of large-scale disasters were measured in millions--not billions....an unprecedented $7.37 billion in donations to disaster relief groups in 2005." source What is going to become of our charities if almost 33% of it dries up by 2015 simply because of Washington's policies?
© Curtis Edward Clark 2012
Doesn't the 'general welfare' clause of the Constitution mean that the Federal government is empowered to dole out charity? James Madison, the principle author of the Constitution, said that the welfare clause is "qualified by the detail of powers (enumerated in the Constitution) connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." [emphasis added]
"I cannot find any authority in the Constitution for public charity. [To approve the measure] would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."
President Franklin Pierce's 1854 veto of a measure to help the mentally ill
There are dozens of direct references to charity and other welfare by the Founders. And it is clear from the hundreds of other references they made about the meaning of this or that word or clause of the Constitution exactly what was intended when they wrote it. But one thing is undeniably clear about Americans: they are willing to see the 'spirit of the law' in the letter of the law, and usually it is not a 'spirit' put there, nor accepted, by the people who gave it to us.
"Until the New Deal era [charity] was known not to be an enumerated power nor one reasonably implied by the 'necessary and proper' clause and therefore considered unconstitutional. Yet around the time of the New Deal, government began overlooking this clear unconstitutionality" Is Welfare Unconstitutional?
"The fiscal year 2013 White House budget specifies that the federal tax deduction for charitable contributions be reduced to a maximum of 28% for married couples with income over $250,000, and single individuals with incomes over $200,000." source
But that White House policy is harmful. In 2009, 89% percent of American households gave an average of $1,620 to charity annually; it was $308 billion in 2008, accounting for 2.2 percent of our GNP), higher than any other country in the world. "This clearly shows America does not have a charity problem--and shows that Americans are fully capable of giving away their own money to good causes." source
Now compare that to the FY2013 Budget, in which we clearly see that Mr. Obama would prefer the Federal government be the major contributor to the health and welfare of Americans:
"This budget would reduce the value of the charitable deduction for certain individuals, effectively subjecting them to pay taxes on money that they give to charity instead of using it to benefit themselves. [G]iving by households with $200,000 or more in income would have decreased by $820 million in 2009 and by $2.43 billion in 2010 had the administration’s proposal been in effect." source [emphasis added]
"Before the Sept. 11, 2001, terrorist attacks, which led to nearly $3 billion in donations for victims' families, donations because of large-scale disasters were measured in millions--not billions....an unprecedented $7.37 billion in donations to disaster relief groups in 2005." source What is going to become of our charities if almost 33% of it dries up by 2015 simply because of Washington's policies?
© Curtis Edward Clark 2012
Monday, July 16, 2012
A Proposed Amendment to the Constitution
Limited Powers Amendment to
The Constitution of
the United States of America
"The government of the United States nor the governments of the several States have, nor shall be allowed, power not enumerated to them or power denied to them by the Constitution or by any of its Amendments."
Discussion: Does this proposed Amendment adequately treat of the problem of encroachment by the Federal government on the right of the States; and does it adequately treat of the problem of encroachment on the rights of individuals by the States?
© Curtis Edward Clark 2011
Friday, April 22, 2011
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.
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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Friday, April 15, 2011
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:
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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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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Monday, April 11, 2011
In my recent posts, I have stuck-like-glue to the comment in made in the very first entry of this blog:
© Curtis Edward Clark 2011
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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: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.'
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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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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Friday, April 1, 2011
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'.
© Curtis Edward Clark 2011
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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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Friday, March 25, 2011
Original Meaning of Ninth Amendment Is Lost in Modern Jurisprudence
The Ninth Amendment is the Constitutional description of "individual sovereignty".
"Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
"Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them."
"Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]
As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.
[1] http://www.mastermason.com/rfire/masonry/waterblot.html
[2] http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3] http://joseph%20j.%20ellis/
[4] http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5] http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6] http://static.record-eagle.com/edits/know_your_rights/26ninth.htm
[7] http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2
*Robert Bork called it an "'inkblot' on the Constitution."
© Curtis Edward Clark 2011
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"Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
"Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them."
"Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]
As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.
[1] http://www.mastermason.com/rfire/masonry/waterblot.html
[2] http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3] http://joseph%20j.%20ellis/
[4] http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5] http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6] http://static.record-eagle.com/edits/know_your_rights/26ninth.htm
[7] http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2
*Robert Bork called it an "'inkblot' on the Constitution."
© 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
Visit the Atheist-AA Google Group
http://groups.google.com/group/atheist-aa
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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