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:

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]

    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'.

    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

"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.

[1] New York Times Week In Review January 8, 2011

[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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The Ninth Amendment, Liberals, and Conservatives

     On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
     Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
     That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
     Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
     "The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
     In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
    OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
    If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
     But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
     What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
     Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
     Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
     That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
     The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
     And that is all that the Ninth Amendment states; and it should read more like this:

"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."

 *1 2 3 4


© Curtis Edward Clark 2011
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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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