But, you well know, courts often look at "legislative intent" when making their decisions. On Constitutional matters, it is not unusual to find the "Federalist Papers" and other early supporting documents quoted for intent.
"As I said, the written law is the law, not the intent of the legislator. At least, that is the way it is in the United States of America. If the written law negates the intent of the lawgiver, somebody better amend the written law."
And how many times have we seen the law intended to do one thing, and end up bastardized in the courts to mean exactly the opposite? Wasn't it Hubert Humphrey who said that if his Civil Rights Act ended up as a quota system he would eat the legislation? He died of gluttony, no doubt.
"I am confident that Reagan was correct. Only a nutcase would agree that the Union created the States."
I believe the point I made was that the States never existed outside of the Union. The Declaration of Independence transformed colonies into states, and simultaneously created a union of those states. I have also made the point that American nationalism preceded, necessarily, the Declaration.
Reagan's underlying motivation was to transfer power and responsibility away from the federal government back to the states and localities - which is a very good thing.
"Chief Justice Rehnquist has it all wrong. So sayeth Jaffa."
Jaffa is about to discuss the point. Read the discussion, rather than mischaracterize it.
"Those words are attributed to slaveowner Thomas Jefferson. Jefferson was tended to by one of his slaves as he wrote that all men are created equal, and he remained a slaveowner until he died. (George Washington died a slaveowner also.)"
Nobody, with one exception, is perfect. Being a slaveowner was not dissimilar to being a crack addict. Both Jefferson and Washington spent much of their adult lives as part of the "landed poor." To them, the slavery question was a conundrum. There is no moral justification for human slavery. When Jefferson wrote "All men are created equal" he did not mean "all white men" (which is your implicit, racist reading).
"In fact, however, the leading feature of the union before independence was its denunciation of slavery. -- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 371
"Really. Harry has me convinced. (What the hell were all those slaves doing there in 1861, anyway?)
Professor Jaffa correctly points out, in his book, that their were, even at the birth of the nation, those who recognized the incompatibility of human slavery with the founding natural law principles.
I do like you "debating style." You set up a straw man and then punch holes it in. The only problem for you is that its punching back!
"Between sovereign states, this argument is nonsense."
There were no fully sovereign states, under any construction of the term "sovereign." The rest of your post is typical neo-reb screed.
Several colonies declared their independence unilaterlly before the DoI. The DoI served as a severance document ("these United Colonies are, and of Right ought to be Free and Independent States [plural]"), not a document that consolidated any states together.
Being a slaveowner was not dissimilar to being a crack addict.
ROTFLM*O!!!!!!!! So what do you say to God when he told his people to take captives of war as SLAVES?
There were no fully sovereign states, under any construction of the term "sovereign."
[I]t could have no effect to restrict the new state in any of its necessary attributes as an independent sovereign government, nor to inhibit or diminish its perfect equality with the other members of the Confederacy with which it was to be associated.
Justice Daneil, Withers v. Buckley, 61 U.S. 84 (1857)
[nc #565] It is an axiomatic premise of all written law, as explained by Aristotle, that if circumstances arise in which the letter of the law negates the intention of the lawgiver, then the intention must be preferred to the letter.
-- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 363
[nc #565] "Harry needs to jump into his wayback machine and move to ancient Greece. The written law is the law, not the intent of the legislator. At least, that is the way it is in the United States of America."
[cr #571] But, you well know, courts often look at "legislative intent" when making their decisions. On Constitutional matters, it is not unusual to find the "Federalist Papers" and other early supporting documents quoted for intent.
They look at "legislative intent" to interpret the meaning of the written law. They do not look to "legislative intent" to replace the written law. It is the written law which is the law, not the intent of the legislator. The purported "intent" is not preferred to the letter of the law. Harry is clearly saying that if the letter of the law misstates the intent, then the intent is preferred, and the written law is to be ignored.
[nc #565] "As I said, the written law is the law, not the intent of the legislator. At least, that is the way it is in the United States of America. If the written law negates the intent of the lawgiver, somebody better amend the written law."
[cr #571] And how many times have we seen the law intended to do one thing, and end up bastardized in the courts to mean exactly the opposite? Wasn't it Hubert Humphrey who said that if his Civil Rights Act ended up as a quota system he would eat the legislation? He died of gluttony, no doubt.
Your argument is irrelevant. It refers only to some judges who ignore the written law, or who make erroneous rulings. Under Jaffa's concept, every judge could claim he had an epiphany about the nature of the lawgiver's "intent" and rule in any way he pleased. The law would be whatever Ms. Cleo says its intent was.
Assuming that the intent of the lawgiver is the law, rather than the written law, would result in chaos. How would any individual, group, or corporation determine if an intended action is lawful? Researching the written law would be useless.
[nc #565] In 1981 President Ronald Reagan, in his inaugural address, declared that the states had made the Union, showing that Calhounianism, even at the highest levels, was still alive and well. I am confident that Reagan, a native of Illinois, had no idea that he was contradicting Lincoln. His entourage, from which the speech emerged, like the conservative movement generally, was, however, filled with disciples of Calhoun.
-- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 520
[nc #565] "I am confident that Reagan was correct. Only a nutcase would agree that the Union created the States."
[cr #571] I believe the point I made was that the States never existed outside of the Union. The Declaration of Independence transformed colonies into states, and simultaneously created a union of those states. I have also made the point that American nationalism preceded, necessarily, the Declaration.
Such a short memory. The point you made was at #539. [ LINK ]
One quotation
50 year career
Wow! That's quite an indictment.
With a sharp mind like yours, you ought to think about going into law.
You complained about the quantity of quotes so I gave you more. Is is coming back to you now?
Here are some more JAFFA quotes from his 50-year career. This time it is from Original Intent.
"One wonders whether Judge Bork has ever read a single document of our Founding" (p. 31)."Comparing Bork's prose to Churchill's is approximately on a level with comparing Andy Warhol's Campbell's Soup can to Leonardo da Vinci's Last Supper" (p. 293).
"[I]t would take at least 50 pages to explain ... all of Bork's innumerable errors in dealing with [the Dred Scott] case" (p. 298).
"What then was the fundamental question in Dred Scott? Although I have written often on this subject, what I have written seems not to have penetrated the emanations or penumbrae that surround... Mr. Justice Rehnquist" (p. 101).
"Because [Meese] followed [Bork and] Rehnquist, [he] utterly misinterpreted the significance of the Dred Scott decision, as I believe I have shown beyond a reasonable doubt (or beyond a possible doubt by a reasonable person!)" (p. 391).
"The attempt by Bork no less than Rehnquist (or Meese) to treat Dred Scott as primarily a matter of judicial usurpation, shows as profound an ignorance of constitutional history as Taney himself displayed in his opinion for the Court in that case" (p. 275)
[cr #571] Reagan's underlying motivation was to transfer power and responsibility away from the federal government back to the states and localities - which is a very good thing.
Unlike Lincoln, Reagan simply told the unvarnished truth.
Reagan had no need for Lincoln's absurd fairy tale.
Before the Revolution there were thirteen colonies, which later became the thirteen states. Some of these were known as Proprietary colonies, some as Provincial, and some as Charter colonies; but all were under Great Britain's sovereignty. These colonies were separate and distinct, and had no political relation to each other. As early as 1643 some of the New England colonies joined together for their mutual good and protection; but England ended this relationship by abrogating the charters of the colonies which formed it. In 1754 and in 1765 there was an attempt on the part of certain colonies to form a union for defense against the Indians, and to resist the growing aggressions of England. In 1774 something more definite was done toward a union, and this is the union to which Lincoln first referred in his Inaugural as being the beginning of the union idea. At this time the British Parliament passed the Boston Port Bill, and enacted still another law which changed the charter of Massachusetts. This state was from the first always doing something against someone or requiring something to be done for it. Now, because the charter had been taken from Massachusetts, all the colonies bristled with resentment. Virginia, where Jefferson and Washington lived, sent up the battle cry, and appealed to all the colonies to send delegates to a general convention or congress, in order that there might be joint consultation on the crisis. Twelve colonies responded to Virginia's call whose delegates met at Philadelphia on September 5, 1774. It was determined at the outset that the congress should be one of separate political organizations, that is separate colonies, or geographical units; and every colony was allocated but one vote, with no reference to the number of delegates which it had sent. The object of this congress is shown by the powers which were conferred upon the delegates. Virginia empowered her representatives "To consider of the most proper and effectual manner of so operating on the commercial connection of the colonies with the mother country, as to procure redress for the much injured province of Massachusetts." Maryland and South Carolina similarly empowered their delegates. [Elliot's Debates, I, 42.] All this congress did was to declare what the rights of the colonies were in the premises, and to make certain recommendations. Then the congress dissolved; recommending that the colonies send deputies again to meet in Congress on May 10, 1775.Whatever union was created in 1774, was thus ended. However, delegates came again, and now what was called a permanent union was formed between the colonies. Words like permanent, perpetual, indissoluble are used by men who well know that time and circumstances make all things impermanent and transitory. They are the expressions of human nature trying to mold the future, they are bonds given to Fate while intending to avoid the bond if the consideration for it fails. This congress of May 10, 1775, was the one which, on July 4, 1776, adopted the Declaration of Independence.
With the adoption of the Declaration, the colonies became states. "We... solemnly publish and declare, that these United Colonies are and of right ought to be free and independent states... and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other things which independent states may of right do," are the words of the Declaration. By the treaty of peace between the states and Great Britain, at the close of the Revolution, the separate sovereignty of the states was acknowledged: "His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts-Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia to be free, sovereign and independent states; that he treats with them as such; and for himself, his heirs, and successors, relinquishes all claim to the government, and territorial rights of the same and every part thereof."
Meanwhile, after the Declaration in which the colonies had asserted their rights as sovereign states, this same congress formulated the Articles of Confederation. This was in 1777; and into this union eleven states entered in 1778; one in 1779 and one in 1781. These were articles of "confederation and perpetual union" between the states. Curtis, in his work on the Constitution, wrote: "The parties to this instrument were free, sovereign, political communities, each possessing within itself all the powers of legislation and government over its citizens which any political society can possess." Marshall, to whose school Lincoln belonged, held in deciding one of the landmark cases of American jurisprudence, [Gibbons vs. Ogden, 9 Wheat, I.) that the states before the adoption of the Constitution were sovereign. "It has been said," he declared, "that they [the states] were sovereign, were completely independent, and were connected with each other only by a league. This is true." These affirmations as to the sovereignty of the states, before the Articles of Confederation, could be multiplied out of the mouths of Webster, Calhoun and many others, but the point is not debatable enough to need further authority.
By the second article of this instrument which created the confederation, it was provided: "Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States, in congress assembled." In preserving the character of the confederation as a league of states, each state had one vote in Congress. And finally the Xlllth Article was written to read: "The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual." Here to refer to Lincoln's Inaugural, the government formed by the Articles had no "provision in its organic law for its own termination;" but on the contrary had express words that it should be perpetual. And yet this union was dissolved and another one created under the Constitution.
Before we come to this, some notice must be taken of the movements which were made to amend the Articles of Confederation. On February 3, 1781, a resolution was adopted by Congress, looking to a tariff on imports, that power not having been given in the Articles. The resolution was rejected by the states. In April, 1783, the same movement was renewed; but the states would not accede to it. In 1784, Congress asked of the states power for fifteen years to regulate commerce with foreign nations. Not enough states agreed to this to make it effective. In 1785 Monroe, in Congress, moved that Congress be empowered to regulate trade. This proposal was ignored. Madison went to the legislature of his state, Virginia, and initiated there a program for investing Congress with the powers so previously rejected. This failed. But in January, 1786, the Virginia legislature passed a resolution, and by it appointed eight commissioners to meet like commissioners from the other states to consider a uniform system of commercial regulations for the states. This resolution was sent out; and New York, New Jersey, Pennsylvania, and Delaware responded, by appointing commissioners. These, from the several states mentioned, met at Annapolis in September, 1786. They accomplished nothing beyond recommending the holding of a general convention of all the states to meet at Philadelphia on the second Monday of May in 1787, there to take into consideration the situation of the United States, and to "devise such further provisions as shall appear to them necessary to render the Constitution of the federal Government adequate to the exigencies of the Union." Here it is to be noted, these men, such as Madison and Edmund Randolph, lawyers and scholars, spoke of the Articles as a Constitution. Yet later there were to be infinite dialetics by Webster to show, if he could, that the Articles were a compact, while the Constitution was only the result of a compact. This convention of May, 1787, was the one that formulated the Constitution, by which the inviolable and perpetual union of the Articles was dissolved, and a new government created.
SOURCE: Edgar Lee Masters, Lincoln, The Man, copr 1931, reprint 1997, pp. 320-3.
[nc #565] As we shall see, Rehnquist's "original intent" has less in common with the intent of those who ratified the constitution than with the intent of those who "de-ratified" it in 1860-61.
-- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 87
[nc #565] "Chief Justice Rehnquist has it all wrong. So sayeth Jaffa."
[cr #571] Jaffa is about to discuss the point. Read the discussion, rather than mischaracterize it.
[JAFFA, New Birth, p. 86-7] "Like Madison, Rehnquist takes issue with those who hold that the Constitution as a "living organism," should "evolve" over time and that judges should discover an evolving meaning in its words."
[nc] Sounds like a good argument for Harry and CR to take over to DU.]
[JAFFA, New Birth, p. 88] "It is clear, therefore, that Rehnquist's jurisprudence of original intent has more in common with Calhounian or Confederate original intent than with that of the Founders or Lincoln."
[JAFFA, New Birth, p. 89] "Actually what he [Rehnquist] says is that there is no basis in reason for any opinions as to what is right or wrong, just or unjust, either in the Constitution and laws of our society or outside them. If no individual conscience is more rational thaan any other, how can any collective conscience be fore rational than any other? A collective conscience becomes merely another name for superior force. This means that there is nothing in the power of reason to support the view that the moral judgment of a Washington or a Lincoln is superior to that of any absolute monarch, not to mention that of a Hitler or a Stalin."
[JAFFA, New Birth, p. 90] "In dismissing 'someone's idea of natural justice,' Rehnquist simply ignores the historic argument of the American people. Of this argument there is no attempted refutation, merely denial."
[nc #565] We believe that we have examined, and found wanting, every serious argument of contemporary historical scholarship to deny or disparage the intrinsic significance or validity of Lincoln's assertion that the United states was founded upon and dedicated to "an abstract truth, applicable to all men and all times."
-- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 121
[nc #565] Harry is writing, of course, about "We hold these truths to be self-evident, that all men are created equal...."
[nc #565] "Those words are attributed to slaveowner Thomas Jefferson. Jefferson was tended to by one of his slaves as he wrote that all men are created equal, and he remained a slaveowner until he died. (George Washington died a slaveowner also.)"
[cr #571] Nobody, with one exception, is perfect. Being a slaveowner was not dissimilar to being a crack addict. Both Jefferson and Washington spent much of their adult lives as part of the "landed poor." To them, the slavery question was a conundrum. There is no moral justification for human slavery. When Jefferson wrote "All men are created equal" he did not mean "all white men" (which is your implicit, racist reading).
He sure wasn't talking about his slaves back on the plantation where they stayed. Especially Sally Hemings. It is a nice try at changing the subject though.
Harry is saying the nation was founded on the abstract truth that all men were created equal. And the Constitution recognized and protected slavery. Black people were not equal in the eyes of the law of such a nation. Women were not equal. They could not own property. Women could not vote until 1920. Heck, not all White men were equal. In many places, only the landed gentry held the right to vote.
The Declaration of Independence was not law. Had it been incorporated into the Articles of Confederation or the Constitution, Harry might have a point. As it is, he is just bloviating.
[nc #565] "In fact, however, the leading feature of the union before independence was its denunciation of slavery. -- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 371 -- "Really. Harry has me convinced. (What the hell were all those slaves doing there in 1861, anyway?)
[cr #571] Professor Jaffa correctly points out, in his book, that their were, even at the birth of the nation, those who recognized the incompatibility of human slavery with the founding natural law principles.
No. JAFFA did NOT say that. JAFFA SAID:
"In fact, however, the leading feature of the union before independence was its denunciation of slavery."
JAFFA PURPORTS that "DENUNCIATION OF SLAVERY" was "THE LEADING FEATURE OF THE UNION BEFORE INDEPENDENCE." Jaffa is blowing it out his butt.
[cr #571] I do like you "debating style." You set up a straw man and then punch holes it in. The only problem for you is that its punching back!
It does not matter when he punches like a bloviating girly man.
[nc #565] Appealing to the law of contracts, he [Lincoln] denied that even then there would be a right of secession, since a contract can be broken by one of the parties but can be lawfully rescinded only by all. This argument was sufficient to assert the legal perpetuity of the Union.
-- SOURCE: Harry V. Jaffa, A New Birth of Freedom, p. 368
[nc #565] "Between sovereign states, this argument is nonsense."
[cr #571] There were no fully sovereign states, under any construction of the term "sovereign." The rest of your post is typical neo-reb screed.
In an argument that the states possessed no right of secession, eliminating the possibility of sovereign states assumes the conclusion and renders the entire argument nothing but hot air.
Try applying this specious argument to the Article of Confederation.
The Constitution was a compact entered into by sovereign states. The A of C documents there were sovereign states. The Constitution documents said compact was between said states who chose to ratify it. Article 7: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same."
Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." How did they lose their sovereignty? (Prior to Appomatox.)