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 law’s 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 [society’s] 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 document’s 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 I’d get the ball rolling with a piece on the cultural component of such questions. I’m 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 anyone’s free to disagree with it. I just hope we can all be civil and respectful when/if we do disagree.
The point is, I can’t “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 don’t 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 Cato’s 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 Man’s 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 God–Man 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 it’s 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 don’t 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. Hegel’s 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 doesn’t; for I don’t; and I’m 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 else’s turn).
My example concerns the scope and meaning of the Second Amendment.
JCC says:
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, who’s 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
_________________________
Notes:
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 I’ve 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 Tonsor’s 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, Cato’s Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects, Indianapolis: Liberty Fund, 1995 [1720]. Trenchard & Gordon were writing about 40 years after England’s 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
10 ibid.
11 ibid.
12 ibid.
13 ibid.
14 ibid.
15 ibid, p. 260 16 ibid.
17 ibid.
18 Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal. Originally published as 99 Yale L.J. 637–659 (1989).
19 David B. Kopel, “The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment,” 2000; http://www.i2iorg/SuptDocs/Crime/35.htm
20 ibid.
Now, there’s an expression I’ve not heard in a long time . . . a long time indeed.
“I earlier complained that the “happiness” language was too “squishy” because every person would define “happiness” in a different way. Then I realized, we don’t need to concern ourselves with any multiplicity of definitions. For our present purposes it is sufficient to ask: What does Jefferson mean by this word?”
Actually, we ought properly ask what did Jefferson and that whole generation of founding fathers mean by the word.
As you read the writings of the Founding Fathers, and the various other documents recording their thoughts and ideas, you will come to wonder, more and more, at how often you encounter the word ‘happy’ or ‘happiness’ (and, likewise the word ‘affection’ or ‘affections’). These terms did not merely reflect a fad, or the fashion of the day, but, aside from their ordinary and daily meaning, also conveyed meaning as a specific philosophical consequence of a society existing in harmony with Natural Law. Such a society was said to promote the happiness and to bind the affections of its individual constituents, by permitting each of them to enjoy fully the benefits of living in a state of nature, while spreading evenly throughout the whole of society the burden of combating the negatives of living in a state of nature. All that is required of anyone is that they have respect (affection) for every member of the society.
Not only does ‘happiness’ belong in that sentence, it is in full partnership with its fellows. The meaning of none can be fully understood but in the context of all.
“It seems Jefferson was forthcoming with his answer in a letter to James Monroe dated 1782"
A well-known letter, full of matters of great import (but then, with Jefferson, there were so many of those). So then, as I reported in an earlier post, a society living in harmony with Natural Law, is a happy society, that would, . . . “in the first instance, let us alone in our beliefs, and leave us to provide for our own wants and needs according to the best of our own abilities, and, in the second instance, would protect us from the aggressions of . . . Prince and Commoner alike”. It would be a society which, as quoted from the first paragraph of Tom Paine’s Common Sense, “promotes our happiness positively by uniting our affections . . .”
It was common with Jefferson and with many of his contemporaries, that when using a word or a term, they oft functioned on several levels at once, and with each level quite likely being fully integrated with some or all of the others. It takes a bit of study to appreciate this fact.
Getting my copy of "THE FEDERALIST PAPERS" out again.
At ease dear betty . . . it matters not who does the posting, only that it be posted. I but mentioned it at all to merely highlight that there was a connection. Besides, what could you be but light on my toes! [grin]
“they understand they don't have to win in court every time. It is enough to cast the pall of a threatened lawsuit to make things tough for targeted miscreants”
Exactly. “Litigation terrorists” a syndicated writer called them. Precisely what they are.
“As my friend joanie-f recently wrote on another thread: …the over-riding purpose of the Constitution was to limit the power of government over the God-given liberties of the individual.”
Yes. To be of any use, government must be able to command obedience, but at the same instance it is obliged to control itself. Society has no coercive means to enforce its distinctions. It must rely on persuasion and an appeal to societal affections to achieve its ends. Government knows no such restraints. Therefore Society must be extremely circumspect in the power to which it assigns Government, granting but little, reserving most for its citizens.
“That paramount principle has found itself compromised via countless convoluted, self-serving arguments – many of which are known as judicial/legal precedents.”
“Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.”
.....Thomas Jefferson, letter to Wilson Cary Nicholas, 7 September, 1803
We’ve been warned (like that’s done any good).
Lastly, I would note that stare decisis is a dual-edged sword for all contending parties in this little ongoing soiree. We may expect that Judge Roberts (anticipated soon to be Chief Justice Roberts) has the same sort of respect for precedent that we see in Justices Scalia and Thomas, but that he, like they, will do what is necessary sparingly but accurately.
marking.
Two features in our system support my musings: 1) the right to keep and bear arms can be seen as a built-in reset button for the Constitution, 2) that the jury of peers may acquit because they deplore the law itself (jury nullification).
No doubt both of these would cause many in government to have nightmares. But if the law is just and applied equitably - the government has nothing to fear from the citizens. OTOH, tyrants need not apply - and (IMHO) that was the point...
I haven’t been able to take but a cursory look at all of the posts on this (very impressive) thread, so please forgive any of my observations that may be repetitious.
First, allow me to bring all of your sublime arguments down to a more ridiculous level for just a moment:
I had minor eye surgery this morning, and am required to do little physical exertion for the next few days. This afternoon, with a patch over the healing eye (which is my good one :) I sat down to ‘listen’ to daytime television for a while (something I never do).
What struck me even more than the inanity of afternoon programming was the low level of afternoon advertising.
One commercial in particular stood out as the most egregious of all (but still representative of the majority of those that I heard). It was a commercial for ‘the injury lawyer’. The injury lawyer himself, asked, more than once, ‘Have you been injured in a car accident? As the result of a fall? As the result of someone else’s carelessness? If so, call 1-800-XXX-XXXX. I will see that you are given access to your most important right – the right to MONEY!’ (No, I kid you not.)
Apparently -- at least through the eyes of those who schedule daytime television advertising -- the majority of viewers at that time of day are (probably unemployed) citizens who delight at the prospect of taking advantage of ludicrous legal/judicial precedents, and verdicts handed down by juries who are clueless as to their long-term ramifications, in order to line their pockets without having to exert themselves other than to pick up the phone and solicit a personal injury lawyer to extract undeserved money via the aforementioned ‘system.’
What hit me right between the eyes was this attorney’s ludicrous, self-serving promotion of the idea that our ‘most important right’ is ‘the right to money.’
I asked myself, (1) How can any reputable attorney stand before a television audience and spew such nonsense? (2) Do state bar exams simply rely on fragile legal/judicial precedent, or is a thorough knowledge of the U.S./state Constitution required as well?
So I looked up three examples of recent (February 2004, July 2004, and February 2005 New York State) bar exams – including both the eighteen included theoretical essay questions and thirty-six sample candidate answers.
Included in the sample answers were ten references to either U.S. or state constitutional rights – and ten references to case law. So these candidates for the bar allowed both case law and the Constitution (either U.S. or state) itself approximately equal weight in their answers.
My question now is, ‘What happens to these attorneys once they have passed the bar?’
My suspicion is that the large majority of them loose sight of Constitutional parameters.
I believe that the most erosive threat to modern American legal/judicial purism is the fact that the Constitution, more often than not, now accepts a back seat to the convoluted inverted pyramid known as case law.
Not infrequently, the Supreme Court now issues rulings that exalt what appear to be a brand new Constitutional principles (recent examples of which can be found in Lawrence v. Texas and Kelo v. New London, as well as numerous decisions that incorporate the blatantly unconstitutional role of international law). Journalists and members of academia then scramble around to unearth several dozen self-proclaimed ‘experts’ who are called upon to convince the citizenry that this particular area (take your pick) of the Constitution has existed for more than two centuries, and we were simply either too lazy to apply it, or the necessity to apply it never arose until now.
The fact that the very explicit words of the document defy the so-called experts’ novel, new interpretation is irrelevant. And we are led to believe that the Framers’ words are extraordinarily malleable -- written by men who surely and intentionally left us some ‘wiggle room’ to apply their precise blueprint ever more liberally as time passes. The idea of a ‘living Constitution’ snakes its way into the judicial process here. And decisions made under the philosophy of a ‘living Constitution’ too often form the foundation for stare decisis law – with each such new decision further empowering its supporters … and further diluting the Framers’ original intent.
Yet, on the other end of the spectrum are those attorneys, judges and citizens who have actually read, comprehend, and revere, the Constitution. They should (IMHO) view stare decisis law as a slap in the face of Article V, because Article V represents the Founders’ wise and visionary argument against the creation of a mountain of ludicrous, and often contradictory, case law.
They specifically authored Article V so that, were their ‘vision’ to prove to be inadequate, or not sufficiently explicit, for the American legal/judicial system decades or centuries hence, concrete (as opposed to nebulous and contradictory) changes could be made by an orderly representative voting process, via amendments.
In that way, and that way alone, is our Constitution a ‘living document.’ Any other interpretation of that term is a politically-motivated scam.
And to the degree that our courts rely on flimsy case law (many examples of which are blatantly unconstitutional, and many examples of which directly contradict others), and embrace the belief that the Constitution is a ‘living document’ (other than as strictly defined in Article V), the judiciary is condoning … even promoting … its own usurpation of Constitutionally-ordained executive and legislative powers (and, indirectly, the personal freedoms of every American citizen – present and future).
~ joanie
Outstanding essay, joanie-f! The above obervation further substantiates YHAOS' observation that our system of government has become a de facto, if not de jure, oligarchy constituted by nine black robes exercising virtually unlimited authority by means of a simple majority vote. They issue the marching orders, and we better march when they do. As long as this situation is allowed to stand, we can no longer say that the American system of government is a democratic, constitutional republic -- or that we are any longer a free people.
I wholly share your outrage over the "ambulance-chaser's" TV commercial, and its suggestion that the people's most important right is the right to money. You might as well institutionalize theft, and say it's okay to so do.
Which brings to mind some lines from Solon:
Pallas Athene, whose hands are stretched out over our heads, mightily fathered, protects us,Pallas Athene, of course is the goddess of wisdom, embodiment of reason, champion of the divine Logos, and the divine protector of the polis of Athens....
But the citizens themselves in their wildness are bent on the destruction of their great city, and money is the compulsive cause.
The leaders of the people are evil-minded. The next stage will be great suffering, recompense for their violent acts....
Some people tell me they worry that the United States will go down to its demise on the model of imperial Rome. I suggest on such occasions that the more likely model is the fall of ancient Athens. Solon put his finger on the crucial problem in the quote just above.
In his own time, Plato railed against the irrational disorder of the people. For he held that the polis (i.e., political society) is "Man writ large." And so no political society could be better than the general quality of the "human material" that constitutes it. And no amount of legislation could ever succeed in remedying the ill social effects of the profound defects of a disordered populace.
I also whole-heartedly agree with your take on the so-called "living constitution." It should be obvious that any constitution that changes gratuitously and frequently could rationally even be considered a constitution. Article V is what makes the constitution a "living document"; not the self-interested tinkering of "innovating" progressivist judges, grinding out case law reinforced by the doctrine of stare decisis....
Thank you so very much joanie for your kind and gracious words about my little essay here. But surely you recognize how desperately I am in need of a competent copy editor!!! :^)
Thank you once more for your magnificent post-essay!
In his own time, Plato railed against the irrational disorder of the people. For he held that the polis (i.e., political society) is "Man writ large." And so no political society could be better than the general quality of the "human material" that constitutes it. And no amount of legislation could ever succeed in remedying the ill social effects of the profound defects of a disordered populace.
A text from Heraclitus runs thusly, according to the translation given at the Logos site:
One must follow what is common; but, even though the Logos is common, most people live as though they possessed their own private wisdom. (Fragment 2)Cornelis Loew ... cites Fragment 2 in Myth, Sacred History, and Philosophy, New York: Harcourt, Brace and World, Inc., 1967, p. 227. In this work, Loew uses Eric Voegelin’s translation:
But though the Logos is common, the many live as if they had a wisdom of their own.The Voegelinian translation of Fragment 2 is, I believe, more faithful to the original Greek in terms of the sheer compactness of its language.
Voegelin’s translation of Heraclitus’ Fragment 1 is worth giving here also:
Although this Logos is eternally valid, yet men are unable to understand it – not only before hearing it, but even after they have heard it for the first time. That is to say, although all things come to pass in accordance with this Logos, men seem to be quite without any experience of it – at least if they are judged in the light of such words and deeds as I am here setting forth. My own method is to distinguish each thing according to its nature, and to specify how it behaves; other men, on the contrary, are as forgetful and heedless in their waking moments of what is going on around and within them as they are during sleep.Certain other of Heraclitus’ Fragments are worthy of note in this connection:
Those who are awake have a world one and common, but those who are asleep each turn aside into their own private worlds. [Fr. 89]Loew observes that “these are striking sentences. Omit the notion of a divine law and Heraclitus sounds very modern; he seems to say that the one common world, which is the corrective for our tendencies to be sleepwalkers in our private worlds, is that with which science deals. The oracles become a call for empirical objectivity over and against emotional subjectivity. But this is not what Heraclitus is saying. The social universality of the human logos is not the universality of scientific language and method, although if Heraclitus were living today he would in no way belittle the impressive and productive results achieved by scientists because their ‘logos’ makes possible dependable worldwide communications within the scientific community. Heraclitus had in mind the community of the polis [i.e., the type of political society of ancient Greece, which was understood as manifesting the dynamic relationship obtaining among the participants in a great hierarchy of being: divine – human – social – natural], its daily life, and its need to be attuned to the one divine logos by which all human laws are nourished.”It is not meet [i.e., fitting] to act and speak like men asleep. {Fr. 73]
Those who speak with the mind must strengthen themselves with that which is common to all [i.e., the Logos], as the polis does with the law and more strongly so. For all human laws nourish themselves from the one divine – which prevails as it will, and suffices for all things and more than suffices. [Fr. 114]
Shades of the spirit of the Declaration of Independence here – to my ear, at least. Certainly Heraclitus thought that men who have “turned aside into their own private worlds as if asleep” were no longer fit to be “public men.”
A couple more fascinating Fragments from a fascinating thinker:
From all is One, and from One is all. [Fr. 10]Voegelin has said that Heraclitus is Plato’s “long shadow.” Indeed, Plato articulated the theme of death-in-life and life-in-death well after Heraclitus, and long before the coming of Christ.Immortals – mortals, mortals – immortals, they live each other’s death and die each other’s life.” [Fr. 42]
Well, just some “grist for the mill” for any interested thinkers out there. Or not, as the case may be.
[God bless you, dear reader.]
Dear joanie, I hope you are not unduly distressed by your eye situation. I pray for your speedy recovery, and shall continue to do so until you tell me things are better. God bless.
The Founding Fathers at least agreed that the Legislatures would indeed be wiser than any of their members. For the most part. On any given day.
A society that will be patron to our wants and needs; that will seek to promote our happiness positively by uniting our affections and by encouraging societal intercourse (no wisecracks - I’m serious here). The First article of the Bill of Rights (the First Amendment to The Constitution of The United States of America), verily, sets down an outline of the separateness of society from government, and the following additional nine articles in the Bill of Rights elaborate on that separateness.
“The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind...because the forefathers did not trust government to separate the truth from the false.”
.....Thomas v. Collins, 323US516, 1945
The foreclosure of “public authority from assuming a guardianship of the public mind . . .”, for example, the prohibition of a government establishment of religion, or of a government proscription of the free exercise thereof, because we cannot “trust government to separate the truth from the false.”
“It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.”
.....Thomas Jefferson, letter to Judge Spencer Roane, 6 September, 1819
Can we think ‘Supreme Court’?
“It is my belief that there are “absolutes” in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be ‘absolute’.”
.....Justice Hugo Black, from Hugo Black: A Biography, Roger K. Newman
If ever there ought be a ‘wall of separation’ let it be between government and society’s constituents, and let that wall be society itself.
¶ The Constitution does not allow the federal government to provide social services or to maintain a compulsory educational system. These are properly the venue of civil society, not government.¶
Yankeedame sends you a definition of civil society which proposes its constituents (individuals and organizations) are independent of government. It is a definition with which I believe you concur (as do I). Consistent with this view, you declare government sponsorship of social services and the educational system (and may we not say a great many other things?) is unconstitutional and not properly a venue of government. Yet, where are they but under the thumb of government.
Sorry, my dear Mr. Paine, we have so confounded society with government, as to not only have left little distinction between the two, but to have obliterated the distinction entirely.
¶ Regulations have a way of trickling down into the private sector.¶
Trickling? Is it not more an instance of Cascading?
¶ Aquinas described quite another role for the church, that of the church militant.¶
Like a Rock. But we must not permit old words to obscure new meanings. Let it not be misapprehended that the Judeo-Christian tradition stands ‘against’ society. We stand against those elements of society who have concluded that, not being able to persuade society to their view, they must now resort to using government coercion in the realization of their ambitions.
It is most troubling that the only prescription for change in the government is the ballot box. In that we have a representative style of government as opposed to a democracy - of the sort established in Rome - we are dependent upon the character of those we elect.
Why should expect the systems of government to control and limit themselves? They cannot. The natural tension that ought to exist between government and society has become politicized. Because society is at war with itself government has taken over that which it rightfully should not govern.
Government authority over civil matters is predicated upon an unwillingness of the citizenry to trust themselves. We do not trust ourselves to educate our young, so we create vast bloated government bureaucracies to do it badly for us.
We obliterate personal responsibility by acceding to government authority over the most minute elements of our lives. Laws and regulations have replaced kindness and decency. We turn to the courts to impose civility because we are incapable of civil discourse.
We have fallen into the Marxist trap of believing that we can legislate our way into decent society. There is no more dangerous premise than that government can enforce civilization. It cannot.
The most horrible, murderous and uncivilized reigns of terror in human history occured in the 20th century. They were all perpetrated by governments with absolute authority, in the name of creating civil society.
What government does best is enforce its will upon its citizenry. Which is precisely why the most effective tool of government is the military and why the military must never be activated within our borders against our citizens, especially during civil unrest. Now, there is a condition to which those in authority in government will never accede.
YHAOS, I appreciated your reference to me as Mr. Paine. Amos was a prophet who railed against his people during a time of luxury and ease. They had forgotten their covenant with God. Paine's voice railed against the complacency with which his people accepted simple tyrannies. Two very different times. One common message.
I am suddenly struck by the importance of what we are doing. There has not been a time before this when the common citizenry could speak and be heard. No, that is not true. When society was smaller there were other effective means of communicating. We have developed a tool that gives us that same ability. Evolution does, after all, occur by intelligent design, or, at least, by intentional design.
Thank you for the post. You are a luminary.
It's a start. For the most part the members of the FedGov branches are not responsible. Some are not even subject to re-election, and most who are, get re-elected automatically depending on the strength of their party machine unless they really are inept. It's a strong system, but susceptible to amazing disconnect from the People.
The spirit of the people appears to be quite down these days. Indeed, de-spiritualization of the public square seems to be a main ambition of those influential cultural elites who are the ideological descendents of Hegel, Nietzsche, Marx & Co. The mainline churches have been extraordinarily incompetent to counter this attack. Rather, they have sought to compromise with "elite opinion" instead of faithfully proclaiming the truths of God and man.
Now that the Roman Church has announced its intention to refuse ordination to gays, a great hue and cry has gone up, and mainly from within the church itself. Pope Paul VI once observed that the Spirit of Evil had invaded the church. It seems he was right, and that the American church may be destroying herself from within.
Yet man needs spiritual nourishment of some kind. So it should come as no surprise that there is great cultural interest in non-mainline religious expression, such as Buddhism, New Age-ism, and the various ideologies. Where the Spirit of the Christian Church has always sought to unify man under God, these alternative religions seek to dissociate men from a common community of discourse and moral understanding. People no longer seem able to understand one another. The upshot is the near-total breakdown of the public order. Or so it sometimes seems to me, FWIW.
And of course, the more divided the community, the society, the greater the "need" for the government to act.... It's a vicious, self-reinforcing dialectic....
Personally I think the only way of of this impasse is a major spiritual revival. It's happened in U.S. history a couple times before; and maybe it will happen again, God willing.
Thank you for your luminous essay/post, YHAOS.
Yes, and for some, if not most, the learning is rapid and deep. Too bad our public school indoctrination system failed to inform us of what is really going on. For example, they glossed over the Constitutional Convention of 1787. What was that about? I would bet that a man-on-the-street poll would disclose that less than 10% of Americans who graduated high school are even aware there was such a thing, confusing it with the original Confederation of 11 years earlier, and confusing the Confederation with the events of the 1860s.
Alamo-Girl, I know you have studied St. Justin Martyr. I came across an insight in Voegelin recently that I thought you'd find interesting. Voegelin observed that Justin considered Christianity the "fulfillment" of classical metaphysics. As you know, Justin resonated most strongly with Platonic thought in particular. Voegelin writes:
By absorbing the life of reason in the form of Hellenistic philosophy, the gospel of the early ekklesia tou theou [i.e., church of God] has become the Christianity of the church. If the community of the gospel had not entered the culture of the time by entering its life of reason, it would have remained an obscure sect and probably disappeared from history.... In the conception of Justin the Martyr (d. ca. 165), gospel and philosophy do not face the thinker with a choice of alternatives, nor are they complementary aspects of truth which the thinker would have to weld into the complete truth; in his conception, the Logos of the gospel is rather the same Word of the same God as the logos spermatikos of philosophy, but at a later state of its manifestation in history. The Logos has been operative in the world from its creation; all men who have lived according to reason, whether Greeks (Heraclitus, Socrates, Plato) or barbarians (Abraham, Elias), have in a sense been Christians. Hence, Chrisitianity is not an alternative to philosophy, it is philosophy itself in its state of perfection; the history of the Logos comes to its fulfillment through the incarnation of the Word in Christ. To Justin, the difference between gospel and philosophy is a matter of successive stages in the history of reason. ("The Gospel and Culture," The Collected Works of Eric Voegelin, Vol. 12, p. 173.)
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