Skip to comments.Freeper Investigation: Original Intent and Constitutional Jurisprudence
Posted on 09/18/2005 9:30:23 PM PDT by betty boop
Freeper Investigation: Original Intent and Constitutional Jurisprudence
by Jean F. Drew
English and Anglo-American laws core principle is the opposition to abusive power as exercised by the state. As Dan Gifford writes in The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason,
The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. It is from this basic tenet that English law and Anglo-American law embody the following principle: The individual has rights against the state .
The danger posed by the usual suspects in government for the sake of power is obvious. However, not as obvious is the more insidious danger posed by a list of usual suspects claiming to be [societys] defenders . Their attacks on God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos the five essential elements that make our system work as obstructions to social progress have been devastating .1
Without doubt, God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos informed the worldview of the Framers of the Constitution and constitute that documents spirit, meaning, philosophy and vitality.
Russell Kirk corroborates this understanding, stating that the roots of American order trace back to four historical cities: (1) Jerusalem, in both the Israelite and Christian developments; (2) Athens, with its classical view of man as a thinking animal who possesses reason and soul; Rome, for the idea of republican virtu personal self-restraint and direct participation in the governance and defense of the state; and London, for its concepts regarding the necessity of restraining monarchical power vis-à-vis the subject in the interest of preserving the public good of individual liberty. 2
Thus the Constitution is an extraordinarily conservative document, given its roots in a much older tradition, writes Stephen Tonsor. Its world view is Roman or Anglo-Catholic; its political philosophy, Aristotelian and Thomist; its concerns, moral and ethical; its culture, that of Christian humanism. 3
The problem with the constitution nowadays is that these ideas no longer inform the worldview of many Americans, in particular the cultural elites who sit on federal and state benches, who man the federal bureaucracies, staff the professoriate, and run the organs of public communications (i.e., the so-called mainstream media). All these constituencies, moreover, are effectively unaccountable to the people whom they purport to serve.
In light of breaking events the recent ruling of a federal court in California that the Pledge of Allegiance is unconstitutional because of its under God language, the recent New London eminent-domain decision of the Supreme Court, and two Supreme Court vacancies (with possibly more to come within the tenure of the Bush presidency) as well as long-standing public quarrels over the meanings of e.g., the Second, Tenth, and Fourteenth Amendments, we thought it would be useful to inaugurate a Freeper Research Project into theories of the Constitution, then and now; i.e., the original intent of the Framers vs. modern prudential and ideological constructions. In particular it would be useful to explore the roles of all the players in a constitutional system based on the separation and balance of powers, to see how well that concept is working nowadays.
Or not, as the case may be. And if that is the case, then to ask: Why not? What has gone wrong such that, e.g., federal judges routinely feel free to legislate their ideals of social progress from the bench?
I thought Id get the ball rolling with a piece on the cultural component of such questions. Im sure my thoughts may prove controversial to some of my Freeper friends; for I intend to show that the single most influential cause of current-day constitutional chaos is the breakdown of a common understanding of God and man and of their mutual relations. It is my view, however the only view that I can relate, based on my observation, experience, and the indirect sources that further inform the present state of my knowledge and anyones free to disagree with it. I just hope we can all be civil and respectful when/if we do disagree.
The point is, I cant do your seeing for you anymore than you can do my seeing for me. Under the circumstances, it seems to me the best course would be to simply compare notes and see if we might learn something from one other.
My friend YHAOS writes: The Founders bequeathed to their posterity rather a unique philosophy, not only of government, but of human relationships. Indeed, YHAOS; the Framers view of human relationships was predicated on the understanding that all men are created equal, and thus all have dependence on a creator. Further, because they are equally the creations of one Creator, all men share a common humanity that effectively makes them brothers. All men are created with possessing reason and free will as a natural birthright, and are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. All men are equal before the law, while constituting the sovereign We the People connoting one single community who delegate a very few existential powers (29 by my last count) to the government, and retain all others unto themselves.
YHAOS continues, It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.4
Indeed, YHAOS. Those who would rule dont much care for this sort of thing as a rule .
The spirit of liberty that informed the American Founding whereby the role of the state was to be severely delimited and constrained was brilliantly expressed by Trenchard & Gordon in Catos Letters (~1720):
All men are born free; Liberty is a Gift which they receive from God; nor can they alienate the same by Consent, though possibly they may forfeit it by crimes .
Liberty is the power which every man has over his own Actions, and the Right to enjoy the Fruit of his Labor, Art, and Industry, as far as by it he hurts not the Society, or any Member of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys.
The fruits of a Mans honest Industry are the just rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is Sole Lord and Arbiter of his own Private Actions and Property5 .
In short, in the early eighteenth century, there was a cultural consensus in England and in the Colonies that it is the GodMan relation from which the just relations of man with his fellow man flows that (not coincidentally) constitutes the limit or check on state power and authority. The Constitution itself epitomizes and expresses this consensus.
So its hardly surprising that, as YHAOS continues, It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.6
Indeed, YHAOS. Those who would rule dont much care for this sort of thing as a rule . And I am particularly intrigued by your notice of the other elites.
These other elites are informed by other notions that were altogether foreign at the time of the American Founding, and for more than a century thereafter. These notions are a specifically German cultural import from Hegel, Nietzsche, Marx & Co., a going (and growing) concern since the mid-nineteenth century.
All three men were obsessed by power. Hegels model of the ideal state was Prussia, which was authoritarian and repressive. He worshipped Napoleon as a new World Savior. All three men wanted to kill God. This last, of course, is required for the free exercise of an unconstrained Will to Power: With God around, plans for constructing Utopia could never come to fruit. So they all decided He needed to be bumped off in order to clear the decks for a reconstruction of the world and human history, in order to perfect future history. Thus history as we know it must end.
And as it turns out, history under God becomes a dead letter with His demise. Then and only then can self-appointed Great Men assume the divine rule and enterprise with a free hand, starting over from scratch, as it were. Hegel and Marx both apparently believed that they could just start from nothing and, by the use of pure Reason, construct ever more perfect worlds, correcting all the imperfections that God left in His Creation, which is now to be happily Over, dispensed with. Men or at least some men have become self-divinized. A New World is a-borning.
We are speaking of the construction of progressivist utopias here.
Now the meaning of Utopia a neologism of Thomas More means Nowhere. Utopia is a model of a perfect society that cannot be realized because an important sector of reality has been omitted from its construction, but its authors and addicts have suspended their consciousness that it is unrealizable because of the omission.7 As the greatest English-speaking poet of the twentieth century put it:
They constantly try to escape From the darkness outside and within By dreaming of systems so perfect that no one Will need to be good .
But the man that is will shadow The man that pretends to be. 8
The omitted sector of reality is precisely the spiritual sector, constituted by the relations of God and man the divine-human encounter that orders human souls, and from souls to societies, including political societies. That is to say, the total eclipse of the great Hierarchy of Being: God Man Society World. It seems plain to me that the murder of God involves a double homicide, one a parricide, the other a suicide .
Clearly, there was a profound sea-change in the understanding of Reality and of human self-understanding between the time of Locke and the time of Hegel. Rather than present a lengthy and probably tiresome analysis of how this noxious diremption occurred, let me just give you a sampler of how meanings central to the human person and to political society are understood these days under the respective frameworks of the Judeo-Christian/classical (JCC) worldview, and the progressivist (P) worldview.
JCC says: There is a nature of man, a definite structure of existence that puts limits on perfectability.9
P replies: The nature of man can be changed, either through historical evolution or through revolutionary action, so that a perfect realm of freedom can be established in history.10
JCC says: Philosophy is the endeavor to advance from opinion (doxa) about the order of man and society to science (episteme) 11
P replies: No science in such matters is possible, only opinion; everybody is entitled to his opinions; we have a pluralist society. 12
JCC says: Society is man written large.
P replies: Man is society written small. 13
JCC says: Man lives in erotic [faithfully loving] tension toward the divine ground of his existence.
P replies: He doesnt; for I dont; and Im the measure of man.14
JCC says: Education is the art of periagoge, or turning around (Plato). [Essentially, this means that education is the art of transmitting the greatest achievements of human intellect and culture to the next-rising generation, which, as we have already suggested above, include achievements of great antiquity. In the specific Platonic sense, this process requires a turning to the Light or alternatively, a tuning into the God.]
P replies: Education is the art of adjusting people so solidly to the climate of opinion prevalent at the time that they do not feel any desire to know. Education is the art of preventing people from acquiring the knowledge that would enable them to articulate the questions of existence. Education is the art of pressuring young people into a state of alienation that will result in either quiet despair or aggressive militancy.15
JCC says: Through the life of reason (bios theoretikos) man realizes his freedom.
P replies: Plato and Aristotle were fascists. The life of reason is a fascist enterprise.16
JCC says: The process in which the nature of man and the other participants in the great Hierarchy of Being becomes conscious and noetically articulate and luminous to the human mind constitutes the life of reason.
P replies: Reason is instrumental reason. There is no such thing as a noetic rationality of man.17
Just in case the foregoing dialog comes across as a tad too abstract, let me give an example from concrete American historical experience that fully reflects the tensions inherent in such irreconcilable differences, and get off the soap box. (Then it will be someone elses turn).
My example concerns the scope and meaning of the Second Amendment.
Surely one of the foundations of American political thought of the [Founding] period was the well-justified concern about political corruption and consequent governmental tyranny. Even the Federalists, fending off their opponents who accused them of foisting an oppressive new scheme upon the American people, were careful to acknowledge the risks of tyranny. James Madison, for example, speaks in Federalist Number Forty-Six of the advantage of being armed, which the Americans possess over the people of almost every other nation. The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty. It is therefore no surprise that the Federal Farmer, the nom de plume of an anti-federalist critic of the new Constitution and its absence of a Bill of Rights, could write that to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.... On this matter, at least, there was no cleavage between the pro-ratification Madison and his opponent.
In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the importance of the Second Amendment. He went on to describe the militia as the natural defence of a free country not only against sudden foreign invasions and domestic insurrections, with which one might well expect a Federalist to be concerned, but also against domestic usurpations of power by rulers. The right of the citizens to keep and bear arms has justly been considered, Story wrote, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
the repository of a monopoly of the legitimate means of violence [by the state] that is so commonly used by political scientists is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace. 18
P replies (actually, this is Justice William Burger, who never wrote a word abut the Second Amendment. Yet after retirement, he wrote an article for Parade magazine that is the only extended analysis by any Supreme Court Justice of why the Second Amendment does not guarantee and individual right).19
the Second Amendment is obsolete because we need a large standing army, rather than a well-armed citizenry.20 Plus we all know guns are dangerous things. Dangerous things should not be left in the hands of innocent (inept) civilians, especially when there are standing armies and organized police forces to whom we may safely delegate the use of force in our society.
To which JCC might retort: Well, whos policing the police? And what if the standing army comes after US?
On that happy note, a few last words:
Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master! George Washington
All powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and every power not granted remains with them, and at their will; and no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President or any department, or officer of the United States. John C. Calhoun
The power of kings and magistrates is nothing else, but what is derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power remains fundamentally, and cannot be taken from them without a violation of their natural birthright. John Milton
1 In Tennessee Law Review: Second Amendment Symposium, vol. 62, no. 3, 1995: 759, http://www.saf.org/LawReviews/Gifford1.htm .
2 Russell Kirk, The Roots of American Order, Washington, D.C.: Regnery Gateway, 1991.
3 Retrieved from a collection of aphorisms Ive been compiling for many years. Unfortunately, at the time I found this one, I was not in the habit of recording the titles of works in which the aporism appears, e.g., in which Tonsors remark was given; and now do not remember it. (Mea culpa So sorry!)
4 YHAOS at http://www.freerepublic.com/focus/f-news/1470264/posts?page=1150#1150
5 John Trenchard and Thomas Gordon, Catos Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects, Indianapolis: Liberty Fund, 1995 . Trenchard & Gordon were writing about 40 years after Englands Glorious Revolution of 1688, of which John Locke was major mentor and instigator. The Framers were well acquainted with the works of all three men, for Locke and Trenchard & Gordon were quintessential sources of the history of revolution in the British historical context; plus the philosophical/sociopolitical movements that they were describing were relatively recent from the Framers standpoint.
6 YHAOS op cit.
7 Eric Voegelin, Wisdom and the Magic of the Extreme, op. cit. The Collected Works of Eric Voegelin, p.316.
8 T. S. Eliot, Choruses from The Rock, as quoted by Voegelin, ibid.
9 Eric Voegelin, op. cit., p. 258
15 ibid, p. 260 16 ibid.
18 Sanford Levinson, The Embarrassing Second Amendment, Yale Law Journal. Originally published as 99 Yale L.J. 637659 (1989).
19 David B. Kopel, The Supreme Courts Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment, 2000; http://www.i2iorg/SuptDocs/Crime/35.htm
Dearest sister in Christ, Im confident that well need your indispensable and ever-gracious help as co-sponsor of this Freeper Research Project .
FYI. Please join in if you have the time and interest. And if you do, please dont hesitate to ping your friends .
Bookmark for tomorrow. Looks like a good one.
It is my honor to help you in any way I can, my dear sister in Christ!!!
Very interesting! Good job! My thoughts:
Feel free to use any of the above in your final write up, please ping me when you finish!
btw, some other good quotes:
Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one; a few plain duties to be performed by a few servants.
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
The suppression of unnecessary offices, of useless establishments and expenses, enabled us to discontinue our internal taxes. ... The remaining revenue on the consumption of foreign articles, is paid cheerfully by those who can afford to add foreign luxuries to domestic comforts, being collected on our seaboards and frontiers only, and incorporated with the transactions of our mercantile citizens, it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer, ever sees a tax-gatherer of the United States?
- Thomas Jefferson (Second Inaugural Address, March 4, 1805)
With respect to a historical subject such as this, IMHO we read too many books and not enough documents. Surely, our founding ancestors would be utterly amazed to learn of some of the things they said, thought, and did.
I haven't the link, but it's easy to google: type in Constitutional Society , click on Liberty Library , and start browsing. Warning: it's addictive, you may come to hate me.
Thanks, betty, for this opportunity.
What has "gone wrong" is that there isn't any recourse for judges who are incompetent. In the real world your pay is based on your performance.
I keep hearing people squawk that judges should have a fixed term, say 10 years, so the incompetent ones can be pushed out. I have a better idea - base their pay, benefits, and retirement on their performance.
Take the Ninth Circuit Court of Appeals, for example. Three-quarters of all of their rulings are overturned. We should take away three-quarters of their pay, benefits, and retirement for the year they make the lousy rulings. That should give them plenty of incentive to make rulings based on the Constitution instead of their will.
This might interest you two.
Thank you for posting this most interesting thread!
I am interested in what has gone wrong with the First Amendment. How has freedom of religion- granted to us by our forefathers, including the rather secular Jefferson and Franklin- devolved into what seems to be becoming a godless society?
And how do we reclaim our society's values without ramming one particular set of values down people's throats with a gun barrel?
Does anyone have a source for the legend about the original draft of the Declaration of Independence reading ". . . life, liberty and property" instead of 'pursuit of happiness'?
Hi Ostlandr! I don't think that's a legend. The Framers and especially Thomas Jefferson were very heavy borrowers from John Locke who was the "father of the Glorious Revolution of 1688" as mentioned in the article at the top of this thread. Locke was a philosopher of the natural law/natural rights school. And he had seemingly concluded that inalienable rights can inhere in man only if they are endowed by a Higher Authority (so to speak). His three main inalienable rights were life, liberty, and property.
Now Thomas Jefferson was a close student of Locke. He knew everything that Locke had to say about natural law and the inalienable rights of persons. Although Locke's list survived verbatim through the first few drafts of the Declaration of Independence (co-authored by Franklin and Jay -- until those two worthy gentlemen realized that TJ was "on a tear," and so delicately withdrew into the background), Jefferson decided in the end (for whatever reason) to replace "property" with "the pursuit of happiness."
Personally, I am clueless why he would want to do that. "Property" is "concrete," tangible; and thus readily understandable by virtually everybody.
But "whut the hay" is "happiness?" You simply cannot quantify it. It might as well be a total illusion, or a chimera or unicorn flitting about. It means something different to every single human person in existence.
Truly I find Jefferson most perplexing on this point (and on some others as well). And so I gather: Not for nothing has he been called "The American Sphinx."
Thank you so much for writing, Ostlandr!
Thank you for those quotes.
My God, how far we have fallen.
Late bookmark and a bump for manana!
Ah,but is it? If the word "property" can be defined as a physical item, or items, with a verifiable market value that can be legally bought,sold, acquired, held in trust, or inherited then comes the question --- Are human beings property?
If so, then the original wording of the Declaration of Independence reading ". . . life, liberty and property" could very well have been interpreted as approving the "peculiar institution" of Slavery.
And, as we all know, Jefferson -- among many members of the Constitutional Convention -- was a slaveholder; albeit many were not, and some among them were firm abolitionists.
--Clarence Thomas, Justice, concurring, Printz v. U.S., 521 U.S. 898 (1997)
"Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right."
--Clarence Thomas, Justice, Printz v. U.S., Footnote 2.
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