Showing posts with label conservatives. Show all posts
Showing posts with label conservatives. 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
Monday, March 21, 2011
The Ninth Amendment, Liberals, and Conservatives
On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
© Curtis Edward Clark 2011
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Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."*1 2 3 4
© Curtis Edward Clark 2011
Visit the Atheist-AA Google Group
http://groups.google.com/group/atheist-aa
Saturday, March 5, 2011
Big Government and the Ninth Amendment
The Tea Party lacks for a lot of things. Number 1 is the intellectual basis for arguing why government should be smaller. "Government should be smaller!" the T-Partiers chant, but their argument is that we can not afford it any longer, as if to say, "If we had all the money in the world, we'd be ok with 'big' government".
Big government ought to be big, if the big problems of the big world call for it. There is nothing wrong with big government so long as it is Constitutionally doing what it ought to be doing, not doing what it ought not be doing, and that what it does that it 'ought to' can be paid for.
Therein lies the problem. More than 100 years of Progressivism have given rise to the idea of "positive liberty", e.g., entitlements. These are not simply things like food stamps and health care, but also government mandates on hair dryers--which save about 12 lives a year at a cost of hundreds of millions of dollars; the mandated demise of the incandescent light bulb so that America doesn't have to build any new nuclear reactors--which are very safe and extremely cheap when the they are allowed to be pebble bed modular reactors; but nooooo, those are not allowed, even while the start-up of such companies as could build them would instantly put tens of thousands of people to work.
Government mandates are costing the people of this nation hundreds of billions of dollars a year in subsidies, including those for bio-fuels, which as we all know by now are pushing up the cost of fuels, the cost of our food, and are not popular, not to mention that the price of biogas must be something like 24¢ less than regular before it actually becomes more fuel-efficient, because you get fewer miles-per-gallon with it.
The Tea Party has turned out to be a very vocal group of fiscal and ethical conservatives, which could be good for America's wallets and America's disdain for corrupt politicians, who until now have mostly gotten away with their indiscretions.
But the Tea Partiers are no more Originalist readers of the Declaration than are their Republican or Democratic counterparts, and therein lies the problem: we need Constitutional Originalists to separate the unConstitutional government from the Constitutional government, not the "big" from the "small" government, because in the end those who call for smaller, or for less, government still fail to remember the reason that a government that governs less governs best: isn't because it's fiscally smaller, it because it is further toward being unable to destroy what is so callously forgotten about the Ninth Amendment.
Big government ought to be big, if the big problems of the big world call for it. There is nothing wrong with big government so long as it is Constitutionally doing what it ought to be doing, not doing what it ought not be doing, and that what it does that it 'ought to' can be paid for.
Therein lies the problem. More than 100 years of Progressivism have given rise to the idea of "positive liberty", e.g., entitlements. These are not simply things like food stamps and health care, but also government mandates on hair dryers--which save about 12 lives a year at a cost of hundreds of millions of dollars; the mandated demise of the incandescent light bulb so that America doesn't have to build any new nuclear reactors--which are very safe and extremely cheap when the they are allowed to be pebble bed modular reactors; but nooooo, those are not allowed, even while the start-up of such companies as could build them would instantly put tens of thousands of people to work.
Government mandates are costing the people of this nation hundreds of billions of dollars a year in subsidies, including those for bio-fuels, which as we all know by now are pushing up the cost of fuels, the cost of our food, and are not popular, not to mention that the price of biogas must be something like 24¢ less than regular before it actually becomes more fuel-efficient, because you get fewer miles-per-gallon with it.
Negative liberty, on the other hand, is the absence of political obstacles and constraints against individual sovereignty, which the Founders sought to guarantee with the Ninth Amendment.The Ninth Amendment says that just because the Founders failed to name and to number all the specific rights you have, doesn't mean you don't still have them. The right to a hairdryer that won't kill you if you are stupid enough to use it near water isn't one of them.
The Tea Party has turned out to be a very vocal group of fiscal and ethical conservatives, which could be good for America's wallets and America's disdain for corrupt politicians, who until now have mostly gotten away with their indiscretions.
But the Tea Partiers are no more Originalist readers of the Declaration than are their Republican or Democratic counterparts, and therein lies the problem: we need Constitutional Originalists to separate the unConstitutional government from the Constitutional government, not the "big" from the "small" government, because in the end those who call for smaller, or for less, government still fail to remember the reason that a government that governs less governs best: isn't because it's fiscally smaller, it because it is further toward being unable to destroy what is so callously forgotten about the Ninth Amendment.
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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