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

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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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.

   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.

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. 

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