Tea Party Originalism

2011-05-13T05:31:00.000-07:00

From the New York Times (but it could have been from any publication, and I heard it from the lips of commentators before I read it):

"For the last three years, federal agencies have backed new mortgages as large as $729,750 in desirable neighborhoods...Without the government covering the risk of default, many lenders would have refused to make the loans.

"Michael S. Barr, a former assistant Treasury secretary, said the federal government’s retrenchment would be painful for many communities. “There’s always going to be a line, and for the person just over it it’s always going to be an arbitrary line. [ ] But there is no entitlement to living in a home that costs $750,000."

    In an economic climate of objective risk taking, the government wouldn't have a hand in it at all. It was the hand of government that created the "arbitrary line" of credit that came from Freddie Mac and Fannie Mae in the first place. There is no entitlement to owning a home, period.

    Well, we both know that isn't a correct statement: there is an entitlement, but there is no Constitutional right, and the entitlement is un-Constitutional.

    A "retrenchment" is precisely what is needed, and it will be painful. If you don't have enough equity to stake against buying a home, any home no matter the size or cost, then you don't objectively deserve to own such a home.

    Maybe in another market on another day the equity you hold would get you what you want. But if that day isn't today, the government can't make it so without trampling on the value of the equity of every other home owner.

    And that does have a "trickle down" effect, except as we've all seen, it's not a trickle, it is a torrent.

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Arab Revolutions and Popular Sovereignty

2011-05-06T14:59:00.000-07:00

     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."

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Health Care and the Supremacy Clause

2011-05-02T00:06:00.000-07:00

    "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

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TP Originalism Exists On the Back Burner

2011-04-29T00:14:00.000-07:00

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
.

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Is There Originalism in the Tea Party?

2011-04-25T05:59:00.000-07:00

    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.

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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Ron Paul and Originalism

2011-04-22T00:06:00.000-07:00

In recent posts I have taken the time to address the subject of Originalism within the Tea Party. Those posts have been clear, that I do not think Originalism exists in the Tea Party movement, to any degree that is catching the attention of journalists with more time and experience in the field, than I do. In Monday's post I was questioning whether Congressman Ron Paul is an Originalist.

Using the various search engines to be found on the internet, I have discovered no connection yet to Paul and Originalism. Paul does, however, have some interesting ideas that harken the lamp of Originalism; it is simply that I can find no link between the philosophy and the man. Using the search engine on RonPaul.com presents you with "Apologies, but no results were found," both for 'Originalism' and 'Originalist'.

The Congressman has been heard many times calling for a review of the philosophy of government. Using 'philosophy' in his fan site's search engine does bring up many instances related to his own philosophy, "with his trademark message of downsizing the federal government, bringing our troops home, balancing the budget and ending the Federal Reserve."[1] But they fall short of saying he is an Originalist. His own site has no search engine.

There is some hope that he 'leans' toward an Originalist reading.[2] On the website maintained by his own staff, he refers to the 'war on drugs' as "that disastrous and unconstitutional war." But then instead of addressing the reasons for its un-Constitutionality, Paul begins to sound like an apologist, saying "the federal drug war creates many additional dangers, while failing to reduce the problems associated with drug abuse." The question then becomes, as I have pointed out in previous posts on various subjects: If the war on drugs did NOT fail to reduce the problems associated with abuse; in other words, if the war on drugs DID reduce such problems as are associated with abuse, would Paul still consider the law to be un-Constitutional? Is there not a right for adults to use (or even abuse) so long as their use/abuse was private, or consensually used with other adults?[3]

Under the tab 'Who is Ron Paul?" we read that he is "the leading spokesman in Washington for limited constitutional government," and "Dr. Paul never votes for legislation unless the proposed measure is expressly authorized by the Constitution."

But in his criticism of the 'war on drugs' he rose on the floor of the House of Representatives "in reluctant support for S. 1789, the Fair Sentencing Act. My support is reluctant because S. 1789 is an uncomfortable mix of some provisions that reduce the harms of the federal war on drugs and other provisions that increase the harms of that disastrous and unconstitutional war. I am supporting this legislation because I am optimistic the legislation's overall effect will be positive."

So it is incorrect to say that Paul 'never' votes for un-Constitutional legislation. In this case he voted to change it, not eliminate it.

But Ron Paul is the front-runner in the House on the issue of freedom and liberty, according to the Constitution as he sees it.

The question still remains, lacking any discoverable evidence, whether Paul is an Originalist. This is important, because the Tea Party needs a leader who uses Original Intent, and does not simply pay it lip service.[4] The Tea Party is showing a propensity for getting sharply defined cuts in budged spending; but if money is continued to be spent on un-Constitutional laws (or eliminated from some) without attacking the root cause--the existence of the law itself--then that law, or others like it, are free to be hoisted back into Congress by the next liberal/progressive government.

[1] Ron Paul’s Speech at CPAC 2011: The Brushfires of Freedom Are Burning!

Disclaimer: RonPaul.com is maintained by independent grassroots supporters of Ron Paul. Neither this website nor the articles, posts, videos or photos appearing on it are paid for, approved, endorsed or reviewed by Ron Paul. For Ron Paul's official website go to House.gov/Paul

[2] See Randy E. Barnett's Original Means vs. Intent

[3] See Speeches and Statements then The Statement on the Fair Sentencing Act (see)

[4] I sent an advance copy to the Congressman's Office, but I do not expect a reply before this is published.I will however share any answers in this blog, after an answer is received.

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A Brief, Brief Exam of the Modern Counter-Enlightenment

2011-04-18T00:01:00.000-07:00

Someone recently asked if we have passed through the postmodern era into a new period of cultural and social history.

No.

"Marxism and postmodernism: people often seem to find this combination peculiar or paradoxical..."[1] They are neither. It was the 'modernists' who led us from Lockean/Jeffersonian individualism into the 'Beat Generation' of artists who came, post-WWII, from the indoctrination of the socialist elements of the unionist movements of their parents' and grandparents' generation.

The tenets of the movement, its belief in progress, freedom, and equality, had been sustained from the outset by artists and intellectuals, and embraced by those who reaped the material benefits it brought.[2]

Those were the individualists like Alexis de Tocqueville, whose historic first-hand description of Americans showed us to believe that "all values are human-centered, the individual is of supreme importance, and all individuals are morally equal. Individualism places great value on self-reliance, on privacy, and on mutual respect. Negatively, it embraces opposition to authority and to all manner of controls over the individual, especially when exercised by the state."[3] And so it included writers like Nathaniel Hawthorne, Mark Twain, and Washington Irving.

But envy of men like John D. Rockefeller, Andrew Carnegie, J.P. Morgan, A. A. Talmadge, and others led to a form of anti-industrialism where the forerunner of today's lobbyists were the so-called competitors of those men.

"Intense lobbying began between 1869 and 1877, during the administration of President Ulysses S. Grant. The most influential lobbies wanted railroad subsidies and a tariff on wool. At the same time in the Reconstruction South, lobbying was a high intensity activity near the state legislatures, especially regarding railroad subsidies. The term itself came from Britain to describe approaches made to Members of Parliament in the lobbies of the House of Commons..."[4]

Lobbying as it was practiced then does not 'embrace opposition to authority', it used authority; nor did it despise 'all manner of controls over the individual, especially when exercised by the state'. It wanted the intervention of the State, because then the lobbyists gained power over those who could manage quite nicely without any government assistance.

In other cases it was quite the opposite: those who could do quite nicely without government interference or 'assistance', were forced to pay-off men in high places who could create interference with tariffs and subsidies to their competitors who were seen as being unable to 'compete' without running interference on their behalf.

'Modernists' were therefore anti-industrialist anti-individualists. The violence of the unionist movement is rampant with people more interested in wresting power from the industries, than with the plight of the poor working class who needed someone to speak for them, to help them raise their wages and gain benefits. "The Russian Revolution had seemed at the time, and for a long time after, to be the answer to the progressive modernist's dream."[2]

We are--and have been since the age of Rousseau and Kant--in the age of the counter-Enlightenment. To think of 'modernism' or 'post-modernism' while stuck in one era (in which we are going backward toward Plato's Cave) is ridiculous. Until we overthrow the counter-Enlightenment that spawned Napoleon and Trotsky, Eugene V. Debs, the Industrial Workers of the World, and "the anti-modern, ideological religious right"[5]--until we do this and get back to thinking in terms of negative rights rather than positive rights, (not to be confused with 'negative liberty' and 'positive liberty') will we actually be in the 'modern era'. Only then, someday far in the future, can we ever look to a 'post-modern' era---and I hope it's rational.

[1] New Left Review
[2] Modernism and Politics
[3] Britannica Precise Encyclopedia
[4] Lobbying in the United States: History
[5] American conservatism as Counter Enlightenment

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Ron Paul vs. Paul Ryan

2011-04-15T00:05:00.000-07:00

    I was surprised to read that Congressman Ron Paul was criticizing Paul Ryan's huge $4T budged overhaul.
    In part, he said he thinks we are “drifting to a point that our big government [ ] tells us what we can do and be responsible for us. And if we don’t have a house, they’ll give us a house. If we don’t have education, they’ll give us free education. If we’re hungry, we get food stamps. And deficits don’t matter. And if you need money, you print the money. And we have this moral obligation to police the world."
    But that makes sense--sort of. Ron Paul is correct, but where has Paul ever said this or that government program is un-Constitutional? Has he only criticized 'big' government without attacking its roots? You have to eradicate the roots of anything be they plants, government programs, or ideologies--or they will grow back again.
    Paul did say more, to that end. "We are dealing with a problem in Washington as a budgetary accounting problem and that’s not it. It’s a philosophy problem." Paul said. What is the philosophy of government?
    The congressman went on to question the role of government in the economy and welfare system. "Ryan," he said, "doesn’t reject that notion. I do.”
On the Mangru Report hosted by Dan Mangru, posted on Paul's own fan website, Paul says this:

"As long as the American people think that we have to police the world and have this world empire and that we have to take care of people from cradle to grave, no tax system will work. You have to change the philosophy of government. Then you can do away with the income tax and not replace it with anything just as we had before 1930."

    But I still have to ask what Paul's philosophy of government is? Is he afraid to confront the idea of un-Constitutionality run rampant, or have I simply been missing those new articles and TV interviews?
Perhaps it is because Paul only thinks that we are drifting toward Big Government that I am peeved about his remarks. That makes me skeptical of whether he is up to the job of helping to lead us out of our suicide-by-altruism mentality.
    I will do some homework, and find out. Ron Paul is correct about Paul Ryan--but only if Ron Paul believes the current philosophy of government itself runs counter to Originalism and to what is specifically written, both in the Constitution and in the letters and papers by the Founders about that philosophy. Otherwise, he is no different from Paul Ryan; he only wears a different suit to hide what he isn't showing.
    Show us the beef, Congressman Paul. Show us your Originalist interpretations.

© Curtis Edward Clark 2011
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2011-04-11T00:04:00.000-07:00

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.

Budgets and Constitutionally Social Issues

2011-04-08T00:06:00.000-07:00

    Monday I wrote that the fight about the budget ought to be about ending Federal programs that are not within the limitations of the Constitution, not about 'over spending'.
    This week, with the Congress racing to find a compromise to keep from shutting down the government, calls are being made to defund things like Planned Parenthood.
    This is partisanship at its worst. Certainly Planned Parenthood ought not be Constitutional, and if an Originalist could prove it is, then some law or another ought to be changed or written so that positive rights are wrong.
Michael Reagan, on Fox News on Tuesday of this week, said that it was always politic in the past to keep social issues out of the fiscal conversation that takes place in public. Fiscal discussions and social-issue discussions should be separated.
    Fine, keep them separated. But don't be partisan about the social-issue discussions. Not all Tea Party thinkers, not all Republicans, not all conservatives, not all independents think Planned Parenthood should be defunded.
    But it is like the woman I wrote about Monday who seemed to be saying the government should act un-Constitutionally by allowing the EPA to regulate, where some members of Congress are of the belief that the actions of the EPA usurp those of the legislative branch.
    Does the existence of Planned Parenthood as a government subsidized entity defeat the originalism the Founders would have expected of the limited powers they wrote into the Constitution?
Congressman Paul Ryan, R.-Wisconsin, announced this week a budget that will cut spending by $4 trillion over the next decade.On "Fox News Sunday with Chris Wallace", Ryan said, "We need to engage with the American people on a fact-based budget, on stopping politicians from making empty promises to people and talk to the country about what is necessary to fix these problems." He continued, "But if we keep kicking the can down the road and keep making more empty promises to people, then we'll have the European kind of pain and austerity."
Perhaps Ryan is simply trying to keep social issues out of the fiscal conversation. But he is obliged to bring in those social issues, which is he is doing to some extent. In his own words, he told Wallace this: "If you're 55 or older, you won't see changes. You won't have to reorient your lives around these things."
Why is that, Congressman? Are you going to address the Constitutional issues that allowed these social issues to become funded in the first place? Or will a more leftist Congress at some future time be able to re-fund them?

Ending Federal programs that are not within the limitations of the Constitution is the first priority not only in preventing a future Congress to re-fund them, but to stop a future Congress from inventing new ones. If we address the Constitutional issues, the budget problems will go away on their own.

I understand it is much easier to fix a budget in the short term, because fixing the Constitutional issues will require many long and ugly arguments, and make us face ourselves as people living under a normative set of laws that have been abnormally ignored and mis-interpreted, both legally and socially.

It must be done. If it is not, this will be a never-ending story. But the story must end if you wish to see your budget cutting efforts succeed in the long run. Social issues are Constitutional in nature, when they are allowed to determine anti-Constitutional legislation.

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Legislative Arguments vs Red Herrings

2011-04-04T00:04:00.000-07:00

     The blurb under the title of this blog reads: "The Original Intent of the Framers was neither Conservative nor Republican. Rather, it was about Individual Sovereignty."
   "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day..."[1]
     But it doesn't seem to be individual sovereignty the Tea Party is calling for with its well-intentioned desire for large spending cuts. While larger cuts rather than smaller ones are better, with the eventual intent of once again balancing the budget, the specific cuts that are made are what are important. I have heard few specific suggestions or desires in this regard, with the exception of Obama-care.
House Tea Party members renewed their support for cuts of $60 billion, in a press conference by Eric Cantor. The Democrats and Republicans seem to be meeting somewhere near $33 billion in cuts. Tea Partiers are calling for heads to roll in 2012 if the larger number isn't met.
    But it is a number that seems to have been pulled from thin air. Why $60 billion and not $600 billion? Perhaps it is only because the smaller number seems do-able. But it does nothing to help restore individual sovereignty.
The fight ought to be about ending Federal programs that are not within the limitations of the Constitution, not about 'over spending'. If we actually had enough money and could balance the budget without cutting spending, would the Tea Party movement have two legs to stand on?
What about stopping funding for things like the Environmental Protection Agency (EPA)? As I write this, "a congressional panel will hold a hearing on legislation — the “Energy Tax Prevention Act” – to stop.....the constitutional crisis created by EPA’s attempt to dictate climate policy to the nation. EPA can neither make climate policy nor amend the CAA without flouting the separation of powers."[2]
    How much money was spent to create these 18,000 pages of legislation? By the EPA's own estimates, the direct costs of implementation alone will be $65 billion--but how much did it cost to research, then author, this massive take-over of the American economy? The EPA acknowledges that its climate policy leads to “absurd results” that are contrary to congressional intent, with operating permits required of millions of non-industrial facilities such as office buildings, stores, restaurants, etc.
     Rep. Fred Upton (R-Mich.), and Rep. Ed Whitfield (R-Ky.) are sponsoring the Act. On a newscast I saw, after Upton was interviewed speaking about how the EPA has no Constitutional authority to do what it now proposes, a citizen opponent of the Act was blaming Upton for causing massive damage in the future, to the environment--by stopping the un-Constitutional actions of the EPA, if they are indeed found to be illegal.
     Did this citizen have a desire to allow the EPA to act un-Constitutionally? If she did not, the network pieced together their news with arguments that had nothing to do with each other; or her argument was a red-herring.
    We can ask why opponents use red-herring arguments; but a better question would be to ask why the networks pit such wrongful arguments against each other? Could the network in question not find someone who didn't have a red-herring to throw, someone who could speak to the question of Constitutionality?
     Congressmen and Senators do the same kind of arguing. "The basic idea is to 'win' an argument by leading attention away from the argument and to another topic."[3] Was it the intent of the network to lead the attention away from Upton's concern; or is it the general thinking of the opposition not to address the Congressmen's concerns, to lead the attention away from the fundamental questions on their own?
     Red-herring arguments seem to be typical of the Tea Party, as much as they are typical of most of Congress, and of State's legislatures. 'Spending cuts' that don't address the issue of why a particular budget item is wrong from the perspective of an American's individual sovereignty, is not going to win many converts. Sure, we can all support the cuts. But can we all support the particular reasons for the particular cuts?
    It would be to the benefit of the Tea Party advocates who actually understand what individual sovereignty is about, to advocate particular cuts based on the illegality of what is being funded.

[1] Kelly L. Ross in a review of 'American Sphinx, The Character of Thomas Jefferson', by Joseph J. Ellis
[2] Andrew Brietbart Presents Big Government
[3] The Nizkor Project

© Curtis Edward Clark 2011

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Two Ways to Read With 'Original Intent'

2011-04-01T00:05:00.000-07:00

     Monday I wrote, "There is a world of difference between 'original meaning' and 'original intent'. Until recently I was consciously unaware of the difference, though I kept running into descriptions of Originalism that seemed to contradict each other, and I didn't know why.
   We Originalists think the correct way of reading the Constitution is to ask what the Founders meant. But there are two versions of what they meant. There is the 'literal' reading, whereby "an historical literalist will see the militia [just as an example] of the 2nd Amendment as referring to all able-bodied men from 17 to 45, just as in the late 18th century."[1]
   But the Militia Act of 1903 designated the National Guard, (Organized Militia), as the nation's primary military reserve. But the 'militia' of men 17-45 was created by the Militia Act of 1792, five years after the creation of the Constitution. In 1787, the 'militia' was the entire body of civilians physically fit for military service and who wanted to volunteer. The Second Militia Act of 1792 (there were two) created the draft. So who and what are the independent militia of today, those people who store weapons and train for the day the U.S. is overrun by enemies, or for the day the Feds become the enemy?
   In 2010 the Supreme Court ruled they were individuals, whose right to bear arms applies to state and local gun control laws. Two years earlier the Court, in the the Heller case, addressed only federal laws. But the rulings only address private ownership in a household; they do not address what particular laws may redress local and State needs for some controls; that issue was sent back to the lower courts to decide.
     Problems with Originalist readings come in several forms:
     A) do we understand the written document as the Framers understood it--in their terms? For example, the right to bear arms could not have meant an Uzi or an M11 machine gun, if they knew of such things?
   B) Since they did not know of such things, how do we know what they would have said once they were told? Alexander Hamilton said in 1788, four years before the first Militia Act by Congress, that if "circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."[2]
   Thus, by the words of the strongest Federalist Founder who sought to expand government powers, "the body of citizens" should be only little inferior, if any at all, to the powers of any government army who might then be able to be used against them. But Hamilton could not foresee rocket launchers and surface-to-air and cruise missiles.
   C) And so, if we are not meant to understand the written document as the they understood it in their frame of reference to the specifics of their existence at that time, then we must find in their other writings what they meant in principle.
Jack M. Balkin[3] argues "that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not. . .
     "For example, the ban on 'cruel and unusual punishments' requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual."
     Originalism, then, is not so specifically about how Jefferson or Madison or Patrick Henry would have applied their idea to our modern problems; that is what is called 'original expected application'.
     Rather, we need to understand the contextual and common meaning of the words the Founders used, and apply those meanings, whether the meanings have changed or not, whether we now use different words or not. We need to understand the intent of what they said, called 'original public meaning', and apply that as the Founders' 'original intent'.

[1] http://www.usconstitution.net/consttop_intr.html

[2] Federalist, No. 29

[3] Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School

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States' Rights and The 'Slow Rot' Principle

2011-03-28T00:09:00.000-07:00

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

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Original Meaning of Ninth Amendment Is Lost in Modern Jurisprudence

2011-03-25T00:04:00.000-07:00

     The Ninth Amendment is the Constitutional description of "individual sovereignty".
     "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
   Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
   As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them."
   "Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
     Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
     Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]

     As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
     And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
   But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
     And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.

[1] http://www.mastermason.com/rfire/masonry/waterblot.html
[2] http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3] http://joseph%20j.%20ellis/
[4] http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5] http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6] http://static.record-eagle.com/edits/know_your_rights/26ninth.htm
[7] http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2

*Robert Bork called it an "'inkblot' on the Constitution."

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The Ninth Amendment, Liberals, and Conservatives

2011-03-21T00:05:00.000-07:00

     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

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What is Allegiance to the "United States"

2011-03-18T00:05:00.000-07:00

Allegiance to the government of the United States is not the same as allegiance to the State of which one is a legal resident. Article XIV, adopted in 1868, states that everyone who is born a citizen or is naturalized and who is subject to the jurisdiction of United States "are citizens of the United States."

"The citizen was not, under the theory of States' rights, in contact with the National Government. He owed allegiance to his State, and the State dealt with the Nation. That theory was definitely set aside by [the Fourteenth] Amendment." *

Americans now owed allegiance to both authorities. Congressman John Bingham was the principal author of Section One of the Fourteenth Amendment, the part with the words "citizen of the United States". "The phrase 'citizen of the United States' had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories." Original Intent.org

"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." John C. Calhoun

     We unintentionally created what would become a behemoth national government, and it was entirely within the purview of the original Constitution because we had amended the original Constitution. But did creating 'national powers' within the 'federal' government automatically give it the broad powers it has today, with hundreds of federal agencies allowed to make law, and the President allowed to make legally binding executive orders, when the first sentence in the Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"?
   Federal powers began to expand, says Doug Fiedor, in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice." In that case, Chief Justice Marshall therefore denied that the delegation [of those powers] was impermissible," and "In 1940, that power was even written into law."
   In future blogs, I will continue to explain how federal expansionism became unlawfully practiced.
     For now it is enough to say that when I pledge allegiance to the United States, it is not the nation that James Madison and the other signers of the Constitution conceived, nor the same federal government that Calhoun described. It is a nation in which both parties conceive of positive rights as an extension of their Fourteenth Amendment duty to protect (and further define) the 'citizen of the United States'.
   The defining of such a citizen' should have been severely limited, by by then it was too late to stop the national train.

Obama Economics is Artificially Hobbesian

2011-03-14T00:19:00.000-07:00

     We are not flawed by nature, as Hobbes believed; yet we are not the way nature intended, either. 'Natural law', on which even the UN Charter is partly based, doesn't allow for such things as jihad, no matter what Hobbes may have thought about man being in a constant state of war.
     It was Locke whose ideas were on the money, and from which were derived the Bill of Rights, in which the Ninth Amendment states that we still retain those natural rights which are not enumerated in the other Amendments. http://teapartyoriginalism.blogspot.com/…
     If you believe in Hobbes, you can accept the idea, if not the form, of jihad. If you believe in Jefferson's version of natural law, jihad is an abomination. When we literally had our gun sights on Osama bin Laden and our men were told to stand down and not take him out, that was an abomination; by the same logic that was used, we would not have killed Hitler in 1939, when he invaded Czechoslovakia and Poland.
     The 'command economics' of the Obama Administration and some similar actions in previous administrations are an abomination against the Ninth Amendment. They put Americans in a state of war against other Americans--as all command economics have done. The most famous of them, of course, are Social Security and Medicare; but the Tea Party, nor other conservatives, are calling for their abolition. They merely want to make them smaller, or in the case of S.S., to privatize it. That doesn't remove it from the field of command economics.
     No, we are are not acting in the way nature intended, so we are not the way nature intended us to be. We are fulfilling in many ways the wrongful description of being a species always at war with itself, because we are not listening to John Locke who told us "...that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions."
     "...command economies are unable to efficiently allocate goods because of the knowledge problem - the central planner's inability to discern how much of a good should be produced. Shortages and surpluses are a common consequence of command economies." Investopedia
     Yet, our government under President Obama is now telling us how much coal, versus how much oil, versus how much nuclear, versus how much "green" electricity we are to produce. It has (as of this writing) approved only one permit for oil drilling in the Gulf since the BP spill. Obama hates coal and says there is no such thing as 'clean' burning of it; nuclear reactors are off the table; and yet this Administration has given hundreds of millions to certain cities to build "recharching" stations for the coming of the electric car--which the government is "commanding" be built.
   This administration is even mandating the demise of the incandescent light bulb so that America doesn't have to produce any new electricity--even when they are pebble bed modular reactors, very safe and extremely cheap.
   The idea is to maintain the current levels of electric usage, even while consumers know of much less expensive ways to run an economy:
1>produce more electricity, thereby putting more people to work and lowering the cost of power;
2>quit telling us how to use our capital, which only creates an artificial but untrue proof of Hobbe's war among men.   Or perhaps it isn't true that men such as Obama, Harding, FDR, and Hillary Clinton (Clinton-care) are not true Hobbesians. Maybe they think Hobbes was correct and simply "work" his system as if no systems with built-in justice existed:
     "Locke's state of nature, however, does contain right and wrong, and so natural rights. Thus, 'to secure these Rights, governments are instituted among men.'". Joseph J. Ellis
     Governments ought not be 'secured' in order to institute intellectual and economic wars among men, but to prevent them with open markets of ideas and goods. If we continue on the Obama Road to ruin, our great-grandchildren will be burning candles and wondering why the word "I" has been banned.

© Curtis Edward Clark 2011
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The Unenumerated Rights in the Ninth Amendment

2011-03-11T00:09:00.000-08:00

    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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Congress and Absolutes

2011-03-07T00:06:00.000-08:00

I answer questions in philosophy and in history in Yahoo's Q&A forum called Yahoo! Answers. Recently, someone asked how "the good" should be defined in terms of "context". Here is my answer:

A good example is in Ayn Rand's novel Atlas Shrugged, in which a hero point-blank shoots to death a military soldier--because he can't make the decision to let her have the prisoner (even though the soldier knows she is trusted by the government)--or adhere to the orders he was given to keep the prisoner, who he, the soldier, knows absolutely is being tortured in secret.

The man being tortured is also one of the heroes and is being rescued. The soldier doesn't even say "Yes" or "No"; he is confused, unfocused, hoping for, you might say, a sign from the heavens about what to do--and the hero had a gun pointed right at him, but he can't make up his mind. So she shoots him dead.
Yet, Rand was a vocal, ardent, and radical advocate for the sanctity of human life. "Individualism," she wrote, echoing Locke and Jefferson and Madison and others, "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." But, to keep this situation of "what is the good" in context, she also wrote this:

"Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics.

   The soldier could not decide which action to take, and while the gun was obviously a coercion, so was his gun, which if he had time he would have pointed at the hero. The soldier was violating the first paragraph, about individual sovereignty, by keeping the prisoner who was being tortured. You might ask, why was he being tortured? Because he was the good guy, and the bad guys (the government in this novel) wanted the tortured hero to work for them. The soldier had to have known this.
   If individual rights are the means of subordinating society to moral law, then it was moral to kill the soldier who couldn't make a soldierly decision, in order to save the hero who wanted the evil government to be subordinate to moral law--which they were not.
   Now, that is a long example. But it is one that is rarely understood about that novel. And since it was written by an advocate of absolute human rights, it puts "absolute rights" into context--save the hero, or let the villains have their way.

   This concept of "absolutism" is something the Tea Party as a whole doesn't comprehend any better than a Progressive, whether a Republican, or a Democrat. There are no absolutists in Congress, save a few who are absolute only on one or two specific issues, but not broadly and fully, and in context of what "absolute Originalist reading of the Constitution" means.
   While there is room for debate even in an Originalist reading, there is no debate that it is a document of negative liberty, not of positive liberty. If there is any member of Congress who you can envision as a hero in an Ayn Rand novel, he or she may be one of those who holds to an absolute idea here and there--but I'll bet s/he couldn't explain why s/he believes it to be an 'absolute'.

© Curtis Edward Clark 2011 Visit the Atheist-AA Google Group http://groups.google.com/group/atheist-aa

Big Government and the Ninth Amendment

2011-03-05T04:07:00.000-08:00

   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.

Originalism vs. Cultural Relativity

2010-03-10T14:37:00.000-08:00

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.

Overcoming the "Overcoming of Originalism"

2010-03-08T06:26:00.000-08:00

In my original post of this blog I wrote: "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."

This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence."

What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.

But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.

But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law?

For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.

The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.

If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths.

Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.

Individual Sovereignty and Ayn Rand

2010-03-04T03:52:00.000-08:00

America's Founding Fathers challenged the institution of the state as the ruler of the individual. Man’s right to exist for his own sake, wrote philosopher/novelist Ayn Rand, was their guiding principle, and they were "determined to establish on earth the conditions required for man’s proper existence, by the 'unaided' power of their intellect."

Those Founders, she wrote, knew man as "an independent, sovereign entity who possesses an inalienable right to his own life." From the Lockean concept of "popular sovereignty," differing from both Hobbes and Rousseau, where he laid the premise that the legislature was only empowered to legislate for the general welfare, the Founders discovered a political axiom.

Whether Locke meant to imply that sovereign power was only in the legislature or in the people, Jefferson and others concluded it was in the individual, the only political entity capable of thought, and the one ultimately responsible for his own welfare, and each must be the one in whom the primary authority rests. Without his consent, there can be no legislative body.

Black's Law Dictionary says sovereignty is "The state of condition of being free from dependence, subjection, or control." But under the U.S. Constitution, the people create a deliberate dependence on their governments to protect the rights they also claim to be able to recover when and if they should so decided to change their form of government. This implies directly that they freely submit some of their sovereignty to their government. That which is freely submitted is the power Locke called "popular sovereignty".

References from the Ayn Rand Lexicon:

For the New Intellectual
The Virtue of Selfishness

Black's Law Dictionary; Fourth Edition

What is "Individual Sovereignty"?

2010-02-22T08:14:00.000-08:00

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.

The Mount Vernon Statement

2010-02-18T23:00:00.000-08:00

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."