On the 20 Year Anniversary of Ruby Ridge

Ruby Ridge energized the radical militarized part of the right wing in a way it had not been energized for years. Ruby Ridge was the event in which the U.S. government set out to determine whether a man who had bought land and moved his family there to get away from what he called a corrupt world, was "connected to" white supremacist or anti-government groups.

What libertarian--and even we Objectivists--are not opposed to the government? It seems that some of our 21st century objections come right from this wrongful use of government power that then turned to the Branch Davidian compound in Waco, Texas, where it killed 76 people, after a 51-day standoff, by accidentally starting their building on fire. These two events were cited by Timothy McVeigh as one reason for his part in the Oklahoma City bombing.

But no right wing sentiment is justification for taking the lives of other innocent people, as McVeigh did. Whether it is justification for killing certain guilty officers of the government in an act of revolution is yet another question. During the American Revolution there were patriotic Americans who detested the acts of the British government, but rationally set forth their reasons to say it wasn't enough for a revolution.

Yet, short of killing specific government officers guilty of acting with disregard toward the Constitution, what other means do the American people actually have for unseating an evil government? How can America have its own 'Arab Spring'?        

Sara Weaver, one of the survivors of Ruby Ridge, said she is devastated each time someone commits a violent act in the name of Ruby Ridge. "It killed me inside," she said of the Oklahoma City bombing. "I knew what it was like to lose a family member in violence. I wouldn't wish that on anyone."

Ms. Weaver, who's older brother was killed by officers in an ambush, and who's mother was killed as she opened her front door while holding one of her babies, by a bullet to the head by one of the government snipers, did not say it was wrong to kill innocent people, as McVeigh had done. Weaver only talked about losing family members in violence. One is not the same as the other. McVeigh was clearly wrong; but was the government? A wrongful death settlement left Ms. Weaver and her sister each $1million. Today the survivors would ask for more, much more.

The Whiskey Rebellion was the first instance of the government using its force against Americans opposed to its use of power. During President Washington's first term Alexander Hamilton needed to raise money to pay federal debts, and persuaded Congress to pass an excise tax on the manufacture of whiskey. The tax was resisted, as it appeared that the eastern "big business" whiskey producers were being favored. When a taxman went to one area of western Pennsylvania, more than 500 armed men resisted. This should have been a wake up call to the new government that it was doing something wrong, but it didn't work. President Washington told the States to call out their militia to quell the resistance, and then he rode at the head of those forces, 15,000 strong. What better demonstration of government force than to have the President lead the army against you?

This use of federal armed power against Americans was one of the reasons for the formation of Jefferson's Democratic-Republican Party, which later repealed the tax. And now we have the spectacle of President Obama's National Defense Authorization Act (NDAA), signed into law Dec. 31, 2011. "President Obama [ ] will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. The President can put you or I into jail indefinitely, without a cause presented to us and without an attorney--if he alone says so.

There is currently a preliminary federal injunction blocking its enforcement. Truth-Out.org said, "US District Court Judge for the Southern District of New York Katherine B. Forrest agreed [that a part of the NDAA would prevent journalists from talking to the enemy]. In a 68-page opinion, she wrote [that journalist Chris] Hedges' and his co-plaintiffs fears that section 1021 could impact their First Amendment rights are 'chilling,' 'reasonable' and 'real'."

But it could be used against you, me, our neighbors, our family members as well, if the President--and the President alone has the authority--decides that an American citizen, anywhere in the world including in our own home, was:

"a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces,"

These fears are 'chilling,' 'reasonable' and 'real' because neither Congress nor the president defined the terms 'substantial support,' 'associated forces' or 'directly supported', not to mention that neither al-Qaeda nor the Taliban can always be easily identified, and that a 'belligerent act' could be anything, including spitting on the sidewalk in a display of your disdain.

President Obama is energizing most of the right wing, both of the sort that has religious sensibilities, and the sort that says their guns will have to be taken from their cold, dead fingers. But he's not where the trouble began; he's only the trouble we elected.

We must stand for our state's sovereignty, our unalienable rights, above all for our individualism against the behemoth that is flying drones in our skies above us, and that is listening to our every phone and internet conversation for the secret words that trigger an investigation to determine whether we are 'connected to' this, that, or the other thing, or whatever it wants to call a 'belligerent act'.

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© Curtis Edward Clark 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:

• 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]

The Constitution, in turn, is an extension of John Locke's famous intensional statement about the state of nature specifically, that it "has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, 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] [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

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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