Showing posts with label Originalism. Show all posts
Showing posts with label Originalism. 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
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
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 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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Monday, March 28, 2011
States' Rights and The 'Slow Rot' Principle
Has the Ninth Amendment had little effect in the courts? It has certainly not had the power of a 'rule of construction', as James Madison said it was.
The enlargement of federal powers in the previous century were able to be accomplished because the Tenth Amendment "does not prevent expansive interpretations of enumerated federal powers...render[ing] meaningless
the Tenth's reservation of powers to the states "[1]
Well, how was this connection between the two Amendments supposed to work? (And why has this scholarship been ignored until now?) States that had demanded the relationship, like Virginia, held up ratification of the Bill of Rights for two years because they didn't think the Ninth was adequate to the job. But James Madison convinced them it was, in a speech to Congress opposing the National Bank (Feb. 2, 1791).
"Madison's draft of the Ninth Amendment," wrote Kurt T. Lash in this new documentation called The Lost Original Meaning of the Ninth Amendment, "contained a rule of interpretation expressly limiting the constructive enlargement of federal power." Madison himself is said to have expressly stated that the altered version found in the Bill. "Madison's speech removed any ambiguity regarding his understanding of the Ninth Amendment, and the Virginia Assembly was entitled to rely on Madison's description of the Ninth when, only a few months later, it ratified the Bill of Rights."[1]
Originalism pertains to the historical documents left behind by the Founders as to what they perceived to be the meaning of their words. See March 8 TPO Because it was Madison who wrote the original wording of the Ninth Amendment, and then convinced other Founders of its meaning, upon which they then ratified the Bill, it is Madison's words we must take into account.
There is a world of difference between "original meaning" and "original intent". I will discuss that in the next blog.
[1] Texas Law Review [Vol. 83:331] 336
[2] Univ. of Pennsylvania Law Review
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The enlargement of federal powers in the previous century were able to be accomplished because the Tenth Amendment "does not prevent expansive interpretations of enumerated federal powers...render[ing] meaningless
the Tenth's reservation of powers to the states "[1]
"Thus statism was to come," wrote Ayn Rand, "not by vote or by violence, but by slow rot—by a long process of evasion and epistemological corruption..."Critics of the loss of the federalism model claim the Tenth Amendment merely says the States retain all powers not ceded to the Federal government; and because of Rand's "slow rot" principle, those 'expansive interpretations'. Very recently discovered historical documentation show that the Ninth and Tenth Amendments were intended to work together so that "the Ninth prohibited interpretations of enumerated power that disparaged those states’ rights."[2]
Well, how was this connection between the two Amendments supposed to work? (And why has this scholarship been ignored until now?) States that had demanded the relationship, like Virginia, held up ratification of the Bill of Rights for two years because they didn't think the Ninth was adequate to the job. But James Madison convinced them it was, in a speech to Congress opposing the National Bank (Feb. 2, 1791).
"Madison's draft of the Ninth Amendment," wrote Kurt T. Lash in this new documentation called The Lost Original Meaning of the Ninth Amendment, "contained a rule of interpretation expressly limiting the constructive enlargement of federal power." Madison himself is said to have expressly stated that the altered version found in the Bill. "Madison's speech removed any ambiguity regarding his understanding of the Ninth Amendment, and the Virginia Assembly was entitled to rely on Madison's description of the Ninth when, only a few months later, it ratified the Bill of Rights."[1]
Originalism pertains to the historical documents left behind by the Founders as to what they perceived to be the meaning of their words. See March 8 TPO Because it was Madison who wrote the original wording of the Ninth Amendment, and then convinced other Founders of its meaning, upon which they then ratified the Bill, it is Madison's words we must take into account.
There is a world of difference between "original meaning" and "original intent". I will discuss that in the next blog.
[1] Texas Law Review [Vol. 83:331] 336
[2] Univ. of Pennsylvania Law Review
© 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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Friday, March 11, 2011
The Unenumerated Rights in the Ninth Amendment
After writing last week on the Big Government and the Ninth Amendment I was looking at other blogs and articles on the Ninth, and discovered this article:
"Unfortunately, the 9th Amendment is hated by many conservatives as well as progressives. While being grilled by the Senate, Robert Bork said that the 9th Amendment had no more legal significance than an inkblot on the Constitution. There are two kinds of conservatives, those who want to return to Constitutional principles of a limited government that protects individual rights and those that want to establish an American Empire."
I also found this, from my good email friend Tibor Machan (whom I met only once in 1979):
"Many politicians are afraid of the Ninth Amendment of the U.S. Constitution. Many of their intellectual cheerleaders in the academy and media show equal disdain for this portion of that legal document. Why?" He goes on:
But when Progressives are stupid enough to state aloud that "the difficulty of getting the Constitution amended" is reason enough for not only ignoring such provisions as the Ninth and Tenth Amendments, but for tromping on them with judicial activism and with legislation so complicated that former Speaker of the House Nancy Pelosi said with a smile, and without a hint of irony, that "We must pass this legislation so that you can see what is in it," it is clear that the Tea Party is far from getting the message that Originalism isn't about "smaller government"; it is about Constitutional government.
But what Tea Partier have you ever heard speak of the Ninth Amendment? One of the "innumerable rights" preserved by the Ninth is the right to be free of mandates such as the requirement to purchase something from the market place--or be fined.
This mandate of Obama-care takes "demand-based economics" to a new level. Fortunately, if this situation is handled correctly, it can be used to unravel the demand economics being forced on us by a "green" government, such as the unwanted production of bio-gas and the eventual "phasing out" (by government fiat) of incandescent light bulbs.
Unfortunately, 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. (They apparently don't see that there is no "unprogressive" argument being made.) And that is what will happen if the party doesn't begin to understand this ideological war isn't about "smaller" government, but about Constitutional government.
© Curtis Edward Clark 2011 Visit the Atheist-AA Google Group http://groups.google.com/group/atheist-aa
"Unfortunately, the 9th Amendment is hated by many conservatives as well as progressives. While being grilled by the Senate, Robert Bork said that the 9th Amendment had no more legal significance than an inkblot on the Constitution. There are two kinds of conservatives, those who want to return to Constitutional principles of a limited government that protects individual rights and those that want to establish an American Empire."
I also found this, from my good email friend Tibor Machan (whom I met only once in 1979):
"Many politicians are afraid of the Ninth Amendment of the U.S. Constitution. Many of their intellectual cheerleaders in the academy and media show equal disdain for this portion of that legal document. Why?" He goes on:
"Why should the Constitution make this point anyway? Because, actually, people have innumerable rights, and to list them all is impossible -- whereas, listing the powers of government, which in the American system are taken to be limited and restricted, can be listed without having to produce a mammoth document."The progressive nature of modern American politics infects both sides of the isles in Congress, as Bork's statement makes clear in the ugliest of terms. It is in the nature of 'listing the powers of government' that limits it, and it's the nature of the Ninth Amendment to prevent limits on the behavior of Americans.
But when Progressives are stupid enough to state aloud that "the difficulty of getting the Constitution amended" is reason enough for not only ignoring such provisions as the Ninth and Tenth Amendments, but for tromping on them with judicial activism and with legislation so complicated that former Speaker of the House Nancy Pelosi said with a smile, and without a hint of irony, that "We must pass this legislation so that you can see what is in it," it is clear that the Tea Party is far from getting the message that Originalism isn't about "smaller government"; it is about Constitutional government.
But what Tea Partier have you ever heard speak of the Ninth Amendment? One of the "innumerable rights" preserved by the Ninth is the right to be free of mandates such as the requirement to purchase something from the market place--or be fined.
This mandate of Obama-care takes "demand-based economics" to a new level. Fortunately, if this situation is handled correctly, it can be used to unravel the demand economics being forced on us by a "green" government, such as the unwanted production of bio-gas and the eventual "phasing out" (by government fiat) of incandescent light bulbs.
Unfortunately, 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. (They apparently don't see that there is no "unprogressive" argument being made.) And that is what will happen if the party doesn't begin to understand this ideological war isn't about "smaller" government, but about Constitutional government.
© Curtis Edward Clark 2011 Visit the Atheist-AA Google Group http://groups.google.com/group/atheist-aa
Wednesday, March 10, 2010
Originalism vs. Cultural Relativity
Cultural relativism is the view that all beliefs, customs, and ethics are relative to the individual within his own social context. In other words, “right” and “wrong” are culture-specific; what is considered moral in one society may be considered immoral in another, and, since no universal standard of morality exists, no one has the right to judge another society’s customs. http://www.gotquestions.org/cultural-rel…
This has led to the Progressive idea of the Constitution as a "living document" that can be "interpreted" to include the current morally relativist positions of our political leaders and/or those who's political action committees support the campaigns of our leaders.
As a denial of "universal" human rights as protected specifically by the Ninth and Tenth Amendments, and by the Constitutional provision that Amendments must be enacted to change what is concretized in the Constitution, it is a denial that men have "unalienable" rights. Those unalienable rights are defined in natural law, and they vary somewhat between philosophers, but essentially they are a refutation of relativism.
President Obama's ideal of six years of national service to the United States government in return for school loans, which were made forbidden by lending institutions specifically so that this six year committment could be instituted, is one such case of relativism.
The first known case of relativism was the statement by Protagoras: "Man is the measure of all things: of things which are, that they are, and of things which are not, that they are not".
But if you believe that governments are constituted by the consent of the people, rather than coming from the blunt force of powerful people or from one faction or tribe being bigger and more terrifying than another, than you must believe relativism is wrong.
Consent of the governed is terminology of "popular sovereignty" as defined by Locke and Rousseau, whereby each individual gives up a bit of his freedom to a common government. Jefferson deduced that before any individual could give up such freedom to the "common sovereignty" that he himself must have "individual sovereignty". One cannot give up what one does not have to give.
"Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members." http://aynrandlexicon.com/lexicon/indivi…
That statement is the direct denial of cultural relativism. So is the U.S. Constitution's Bill of Rights.
Cultural relativism taken to an extreme means a tribe still has the right to throw virgins into volcanoes, or to eat other men who happen to be in the way when the tribe is hunting for food, or to rape virgins in order to prevent getting HIV/AIDS when screwing other women who already have it. (This is a true scenario in some parts of Africa.)
"Do not make the mistake of the ignorant who think that an individualist is a man who says: “I’ll do as I please at everybody else’s expense.” An individualist is a man who recognizes the inalienable individual rights of man—his own and those of others.
"An individualist is a man who says: “I will not run anyone’s life—nor let anyone run mine. I will not rule nor be ruled. I will not be a master nor a slave. I will not sacrifice myself to anyone—nor sacrifice anyone to myself.” http://aynrandlexicon.com/lexicon/indivi…
Do not make the mistake of believing that I’ll do as I please at everybody else’s expense, as a statement of moral relativism by a person, tribe, city, or nation, is superior to objective standards of ethics.
© 2010 FAMN LLC (MI)
Monday, March 8, 2010
Overcoming the "Overcoming of Originalism"
In my original post of this blog I wrote: "Taken as a 'living document' progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A 'living document' needs no Amendments. It can be twisted to meet the needs of whatever political party has power."
This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence."
What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.
But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.
But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law?
For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.
The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.
If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths.
Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.
This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence."
What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.
But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.
But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law?
For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.
The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.
If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths.
Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.
© 2010 FAMN LLC (MI)
Thursday, February 18, 2010
The Mount Vernon Statement
On February 17, 2010, a number of well-known and influential people met at President Washington's home, Mount Vernon, to sign The Mount Vernon Statement, billed as Constitutional Conservatism: A Statement for the 21st Century.
Liberal groups, said the Vancouver Sun, dismissed the Mount Vernon Statement as a rehash of right-wing ideas better suited to the 18th century than the 21st.
"The Mount Vernon Statement," reported the Sun, "appears to be yet another recitation of the same tired dogma we've seen for decades," said Michael Keegan, president of People For the American Way.
No explanation was given for why the U.S. Constitution is "better suited to the 18th century than the 21st". But it appears clear that the signers have comitted themselves to one error. Throughout the Statement they refer to the Constitution as a "conservative" document.
"At this important time, we need a restatement of Constitutional conservatism grounded in the priceless principle of ordered liberty articulated in the Declaration of Independence and the Constitution," reads the Statement. "The conservatism of the Constitution limits government’s powers...A Constitutional conservatism unites all conservatives...It reminds economic conservatives [and] social conservatives [and] national security conservatives [that] Constitutional conservatism based on first principles provides the framework for a consistent and meaningful policy agenda."
The error is in the attempt to label and to categorize the U.S. Constitution as a conservative document. It was not a conservative document in 1787. It was not debated nor established in a conservative atmosphere.
A "radical act occurred when 55 representatives of the 13 colonies gathered to improve on the Articles of Confederation and instead locked the doors, posted sentries, and proceeded to discuss, debate, and develop the most unprecedented document ever created as a blueprint for governing a nation.
"This radical document we know today as The Constitution for the United States of America. Never before in the history of mankind had such an approach been suggested, and then ratified....This was truly revolutionary, radical, bold in vision, and bolder in application." Gary Wood
So, "why does the New York Times label Ron Paul as the most radical congressman in America for calling for a return back to our constitutionalist ideals?" Through the Magnifying Glass
Because the American people have no idea what freedoms they would once again own as individual, sovereign entities under Federalist principles governed by the ideal of a republic. To roll back the clock to such a moment when men were again "Citizens of their several States" instead of "citizens of the United States" under the 14th Amendment; to go back to a time when the Interstate Commerce Clause did not give the Federal government the power to control nearly every aspect of industry and commerce, would be radical in and of itself. It would require legislators in every State and in Congress who understood Originalism. It might require a Constitutional Convention, because to right some wrongs would require Amendments. We cannot simply "go back" without unintended consequences. Laws that put legitimate criminals in prisons are sometimes not legitimately "laws" according to Originalist interpretations of the Constitution, and yet we cannot let dangerous people out of prison.
President GeorgeW. Bush was not the first to declare certain captured enemy soldiers by the title of "enemy combatants"; Lincoln did so during the Civil War, and there are those who would perhaps be correct to say that both Presidents were wrong to do so. Yet there are men detained at Gitmo who would kill another 3000 Americans (or Spaniards or Malays or French or British or Germans) if they were released.
The Constitution is not the "conservative" document the Republicans would like us to believe. It is more important than that, more primary, more principled, more limited than most Conservatives would want to see.
We got into this messy situation of ignoring and going around the Constitution because Republicans as much as Democrats and Progressives wanted the power to control the forces of law.
We don't need "conservatives", Tea Party or otherwise, controlling our nation. We need the radicals who will state without equivocation, "I swear to abide by the Constitution as it was given to us, not as I would have it through subversion."
Liberal groups, said the Vancouver Sun, dismissed the Mount Vernon Statement as a rehash of right-wing ideas better suited to the 18th century than the 21st.
"The Mount Vernon Statement," reported the Sun, "appears to be yet another recitation of the same tired dogma we've seen for decades," said Michael Keegan, president of People For the American Way.
No explanation was given for why the U.S. Constitution is "better suited to the 18th century than the 21st". But it appears clear that the signers have comitted themselves to one error. Throughout the Statement they refer to the Constitution as a "conservative" document.
"At this important time, we need a restatement of Constitutional conservatism grounded in the priceless principle of ordered liberty articulated in the Declaration of Independence and the Constitution," reads the Statement. "The conservatism of the Constitution limits government’s powers...A Constitutional conservatism unites all conservatives...It reminds economic conservatives [and] social conservatives [and] national security conservatives [that] Constitutional conservatism based on first principles provides the framework for a consistent and meaningful policy agenda."
The error is in the attempt to label and to categorize the U.S. Constitution as a conservative document. It was not a conservative document in 1787. It was not debated nor established in a conservative atmosphere.
A "radical act occurred when 55 representatives of the 13 colonies gathered to improve on the Articles of Confederation and instead locked the doors, posted sentries, and proceeded to discuss, debate, and develop the most unprecedented document ever created as a blueprint for governing a nation.
"This radical document we know today as The Constitution for the United States of America. Never before in the history of mankind had such an approach been suggested, and then ratified....This was truly revolutionary, radical, bold in vision, and bolder in application." Gary Wood
So, "why does the New York Times label Ron Paul as the most radical congressman in America for calling for a return back to our constitutionalist ideals?" Through the Magnifying Glass
Because the American people have no idea what freedoms they would once again own as individual, sovereign entities under Federalist principles governed by the ideal of a republic. To roll back the clock to such a moment when men were again "Citizens of their several States" instead of "citizens of the United States" under the 14th Amendment; to go back to a time when the Interstate Commerce Clause did not give the Federal government the power to control nearly every aspect of industry and commerce, would be radical in and of itself. It would require legislators in every State and in Congress who understood Originalism. It might require a Constitutional Convention, because to right some wrongs would require Amendments. We cannot simply "go back" without unintended consequences. Laws that put legitimate criminals in prisons are sometimes not legitimately "laws" according to Originalist interpretations of the Constitution, and yet we cannot let dangerous people out of prison.
President GeorgeW. Bush was not the first to declare certain captured enemy soldiers by the title of "enemy combatants"; Lincoln did so during the Civil War, and there are those who would perhaps be correct to say that both Presidents were wrong to do so. Yet there are men detained at Gitmo who would kill another 3000 Americans (or Spaniards or Malays or French or British or Germans) if they were released.
The Constitution is not the "conservative" document the Republicans would like us to believe. It is more important than that, more primary, more principled, more limited than most Conservatives would want to see.
We got into this messy situation of ignoring and going around the Constitution because Republicans as much as Democrats and Progressives wanted the power to control the forces of law.
We don't need "conservatives", Tea Party or otherwise, controlling our nation. We need the radicals who will state without equivocation, "I swear to abide by the Constitution as it was given to us, not as I would have it through subversion."
© FAMN LLC (MI)
Wednesday, February 17, 2010
Tea Parties vs. Originalism
Tea Party language calls for "smaller government". Smaller government means nothing, because theoretically it could still include Medicare, Social Security, income taxes, death taxes, and other forms of government power over the individual that was never "originally intended."
Indeed, if the Founders had known then what they could not have known without omniscience, they would have crafted a Constitution that would not allow for the idea of a "living document."
Taken as a "living document" progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A "living document" needs no Amendments. It can be twisted to meet the needs of whatever political party has power.
"Originalism is the view that the Constitution has a fixed and knowable meaning established at the time of its enactment." U. of San Diego School of Law The Tenth Amendment tells us that the powers not delegated to the United States nor prohibited to the States themselves are either reserved to the States, or to the people. In theory this means each individual ought to have the freedom to do whatever he or she pleases so long as it does not abrogate the sovereignty of any other individual within the definition of such sovereignty.
Unfortunately, there is little in the Ten Amendments to guarantee such sovereignty.
Unfortunately, there is little in the Ten Amendments to guarantee such sovereignty.
"Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." wrote Joseph J. Ellis.
The separation of church and state came to be part of our law, not by being written in the Constitution, but by being a part of the national debate during the writing of the Constitution, by being accepted as a "common assumption of the day."
This is Originalism and that is how it operates; the Jurist behind the bench reaches back into the history of our Founding, discovers what the Founders wanted even if they failed as men to include it in the Constitution, and then he incorporates that Original thinking into his decision.
We cannot blame the Founders for their lack of omniscience. We must look to what their intentions were and accept them as the guiding principle behind the document being judged.
If the decision of the Jurist does not match the needs of the people or of society as it exists today, it is then up to our Legislative branches to write the laws that will meet our needs--but those laws must also meet the Original Intent of the Founders, or we must create an Amendment to meet the current need.
© FAMN LLC (MI)
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