Inalienable Gun Rights Are Not Extremist

Last week, Judge Andrew Napolitano revealed a secret about the Second Amendment: “The Second Amendment was not written to protect your right to shoot deer. It was written to protect your right to shoot tyrants if they take over the government.”

Why is it a 'secret'? It's a secret because 230 years ago, during a time when the Patriots and other colonists knew they would need weapons to fight the British, they knew they had right under the natural rights theory to own them, though the British government wanted to take them in order to keep the upper hand.

But since that period we have forgotten there might come a day when the federal powers to make us do whatever they wanted would be so great we would have to fight our own government. The NDAA which the President signed on New Year's Eve day, gives him the authority to use the military to arrest and detain indefinitely any American he chooses, for reasons he does not have to disclose.

On April 19, 1775, after British General Thomas Gage sent 700 trained troops to Concord, Massachusetts, the shot heard round the world began a war. The British had come for the guns of Americans. "Their own government had come to disarm them." [1] Arizona, Tennessee, Washington, Virginia, and six local governments including one in my home state of Michigan, have either nullified the NDAA, or are debating doing so. Several sheriffs and other law enforcement officials have stated they will not enforce the NDAA. In some places states have made it illegal for state authorities to enforce the NDAA and certain provisions of ICE rules. [2]

About Napolitano's comments, "Charles Blow wrote in The New York Times, 'These extremists make sensible, reasonable gun control hard to discuss, let alone achieve in this country, because they skew the conversations away from common-sense solutions on which both rational gun owners and non-gun owners can agree.' "

So those who defend the natural right of property ownership against a government that would abrogate those natural rights are the "extremists"; those who see the Second Amendment as something added to the Constitution, rather than as something which reinforces it as an "inalienable", right are common-sensical. 

Why is it a violation of the right-to-safety of other people to have a populace who is armed and has violated no laws? Is it because someone could steal his mother's guns and shoot 20 children and 6 adults?

If that is the reason, then who is to prevent President Obama or another President from sending another "General Thomas Gage" to some part of the U.S. to disarm people it knows will fight the tyranny of a government that does not act Constitutionally, but rather acts like a utilitarian extremist?
[1] http://www.backwoodshome.com/articles2/silveira119lw.html 
[2] http://www.naturalindependent.com/archives/7123/virginia-nullifies-ndaa-the-tenthers/

© Curtis Edward Clark 2012

Individuals Are Not Sovereign, Obama Implies

Individualism is the recognition that sovereignty, meaning one's ownership of one's self, is inherent from birth. These are the so-designated "self-evident truths". The purpose and legitimacy of a government, then, resides in its protection of individualism's opposition to both restraint by government, and by assistance from from it. Restraint violates the sovereignty of the restrained; assistance violates a person's sovereignty indirectly by violating the sovereignty of others for his or her sake. In today's political climate that is called variously 'social justice' or 'social equality', or more honestly 'distributive justice.'

"What [Obama] means by his slogan, 'You’re not on your own, we’re in this together,'", wrote The Objectivist Standard, "is that individuals are not sovereign and that government must dictate the means and terms of their lives."

The first hint that most of America got in regard to the President's disregard of sovereignty, was his now-infamous talk with 'Joe the Plumber'. This was when Obama told the man, who had asked him a question about his business plans, that his taxes might go up if he reached the $250K mark. "It's not that I want to punish your success," Obama was telling America. "I just want to make sure that everybody who is behind you, that they've got a chance at success, too." 

We ought to have taken that presciently. Many did, including myself, but the left said 'pooh pooh, that isn't what Obama meant'. Now we know it is precisely what he meant. If more Americans had had their eyes and ears open in 2008, we could have seen that he has no idea how how business works, how individualism works, or how the Tenth Amendment works, all of which which the last four years have borne out. 

"For the president of the United States to say that you didn’t do that, [that] you didn’t build your business, was a ‘Joe the Plumber’ moment of 2012," said Rep. Greg Walden, deputy chairman of the National Republican Congressional Committee and former small business owner.

"Those persons and groups who oppose the devolution of authority from the central government to the states in the United States," wrote James Buchanan, "[place] other values above those of the liberty and sovereignty of individuals." Does Obama not do everything to show that he appreciates the evolution of authority from the individual to the central government? "[In] a large economy, characterized by liberty of resource flows and trade throughout the territory," Mr. Buchanan continued, the problem becomes how "to maximize the protected sphere of individual sovereignty."

Individual sovereignty involves every sphere of human activity, even such things as trade policy with other nations:
"US trade policy is almost always debated in terms of economic utility: Does free trade raise or lower incomes? Does it help or hurt U.S. industry? Does it create or destroy jobs? But behind the statistics and anecdotes lie moral assumptions about human nature, [and] the sovereignty of the individual." source

'Protecting the sphere of individual sovereignty' is certainly not what our President is about.

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© Curtis Edward Clark 2012

Arab Revolutions and Popular Sovereignty

     As for the point of calling the government the "popular sovereign", Locke is relevant in today's world of Arabic/Islamic revolutions. It is unlikely that in today's world any nation, let alone an Islamic nation, is capable of going the distance as America's Founders did, by making the sovereign the individual.

     Jefferson and the other founders conceived that if the people (individuals taken as a single body politic) had the right to turn over to the government some of their rights, then the individuals were the actual sovereigns, because they cannot turn over what they do not already have. In other words, you can't give away what you don't have.

     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..." http://www.friesian.com/ellis.htm

     This was carried through to the 20th century by Ayn Rand, who used many of the same phrases as the Founders:
"Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."
http://aynrandlexicon.com/lexicon/indivi…

     However, this kind of thinking was rejected in the 12th century by the Muslims when they rejected the philosopher Ibn Rushd (Averroes) who fled to Spain to save his own life. Ibn Rusd didn't advocate individual sovereignty--it would take Americans to do that, by adapting to what Locke taught them. Locke learned from Aquinas who learned from Ibn Rushd and worked from many of the man's translations of Aristotle.

     And so, in today's world it probably isn't possible to see another America rise from the ashes of any nation whether Western, Eastern, or Middle Eastern because the idea of individual sovereignty cannot return in the U.S. until the States take back their 10th Amendment rights, after which the people can then take back their 9th Amendment rights (notwithstanding the recent controversy that the 9th is also tied directly to States' rights).

     Locke referred to "popular sovereignty". Thus, Madison wrote that "Individual rights and governmental powers were understood to be reciprocal—two sides of the same coin. As Madison wrote in a letter to Washington: 'If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured[] by declaring that they shall not be abridged, or that the former
shall not be extended.'” http://webcache.googleusercontent.com/se… page 14

     It seems however that they have been abridged, and that "the former" has been extended. Locke's "popular sovereignty" may be composed in any way the individuals of the nation wish to compose it. Turkey has had "popular sovereignty" since the Second world war and Iraq is now trying to follow in Turkey's tracks, both nations operating in the manner of the Arabs, not the way of Europeans; and of the Islamic nations now undergoing revolutions and convulsions, some may turn to Arab popular sovereignty.

     It is unlikely, however, that any of them will turn to natural rights as fully as America did. They don't understand natural rights because that is what Ibn Rushd would have led to--an Islamic Locke (or Hobbes or Rousseau). Muhammad and Allah cannot allow western individualism which "regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life."

© Curtis Edward Clark 2011

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Health Care and the Supremacy Clause

    "State governments are pushing back reasserting federalism as the Founders intended them to do," said the Attorney General of Virginia, Ken Cuccinelli."Virginia was the first state to argue in federal court that the new health car law is unconstitutional.....[A] legal expert said our case relied on a 'controversial reading of the Constitution.' Apparently it is controversial to apply the Constitution as it was written." [1] 

    The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
 
    To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.

    Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.

    "Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]

    As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence.  "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]

    But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."

    Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?

    This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]

    Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:

    "Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."[6]


    The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."

    It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.

    But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.

    I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.

    Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.

[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010 
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness

© Curtis Edward Clark 2011

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

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

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

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

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

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

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

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

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

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

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

© Curtis Edward Clark 2011
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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]

     "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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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:

   "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.




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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)

What is "Individual Sovereignty"?

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

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

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

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

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

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

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

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

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

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

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

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

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

© FAMN LLC (MI)

Tea Parties vs. Originalism

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

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

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

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

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

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

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

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

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

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

© FAMN LLC (MI)