Freeper Investigation: Original Intent and Constitutional Jurisprudence

Freeper Research Project | September 19, 2005 | Jean F. Drew

[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.

[betty boop]

As I read it, the Constitution puts the power - the determination of guilt/innocence before the law - in the jury, otherwise every trial would be a bench trial.

Exactly! Moreoever, the state may not prosecute a person for a crime unless the grand jury agrees -- the person is shielded from direct action by the state by a panel of his neighbors, and can be tried for a crime only if they agree. And then another jury, the petit jury, will ascertain the facts and law of the case, and determine guilt or innocence. Plus there is a presumption of innocence until/unless guilt has been demonstrated to the jury's satisfaction.

Ours is such an amazing system! I can't imagine a system of justice superior to our own. In most of Europe -- excepting Great Britain, of course -- the defendent is presumed guilty unless/until proven innocent; and judges, not juries, make that determination.

I though it very interesting that Mahatmas Gandhi abolished the jury system -- a fixture of the British Empire -- when India gained her independence back in the late 1940s IIRC. I asked an Indian friend why India decided to shuck the jury system. She told me it had been rife with corruption. I didn't say anything, for I didn't want to be impolite. But speaking for myself, I would rather take my chances with "corrupt" neighbors than "corrupt" judges, any day....

[Alamo-Girl]

Thank you so much for all the information and insight! I didn't realize that India had abandoned the jury system. How bizarre. It is much easier to corrupt a single person than a "committee" of 12 or so.

Decades ago an attorney friend of mine was laughing about certain laws, regulations and ordinances that were still on the books in Texas - laws which noone in his right mind would try to enforce. And if he did, the jury would no doubt nullify it anyway.

One, he said, made it a crime to wear spike heels (because it could damage city streets). Another had to do with being caught with wire cutters (the suspicion was cattle rustling).

He said there was one little town which really deplored the automobile and passed an ordinance that there would be a speed limit in the town - and that it would not be posted.

But my favorite was a regulation for the railroads that if two trains from opposite directions should approach each other on the same track, that neither could proceed until the other has passed. LOLOL!

[betty boop]

But my favorite was a regulation for the railroads that if two trains from opposite directions should approach each other on the same track, that neither could proceed until the other has passed. LOLOL!

How sensible -- NOT!!!!! LOLOL!

Thanks for the chuckle, Alamo-Girl! :^)

[yankeedame]

...The second [jury nullification] is subtle and would apply to a government which has become irrational or outrageous, such as prosecuting individuals for non-compliance to a repulsive law.

..[For example:]If the parents of a newly born fourth were brought before a jury – though all the facts and the law were established – if the jury believed the law itself to be repulsive, it could acquit thereby nullifying the law.
These are very deep waters. The doctrine of nullification -- whether state or judicial -- is like a shard of glass: it will almost certainly cut the hand that wields it. First of all, if a law is " irrational or outrageous", how did it pass into a law? Who sponsored it? Who backed it? Who voted for it? If this law could be described in one word as "repulsive" why would any one in Congress vote for it? These elected men and women have to face the voters every day - to laud in their approval or tremble under their frown -- either in person, through telephone, email, letters,etc. Surely the representative would think,

"This proposed law is ridiculous. No, worse. It's repulsive. If I vote for this thing the folks back home are going to run me out of town..."

I understand you mean your example as just that -- an example, but while anything is possible, I suspect the passing and signing into being a law that would be considered by a majority of Americans as "repulsive" is very small. No, nine times out of ten nullification is not driven by moral outrage but by friendly juries persuaded to go with the interests of the defense.

And last but not least, let us not overlook the semantic trip wires:

"... a government which has become irrational or outrageous, such as prosecuting individuals for non-compliance to a repulsive law..."

"A" government,i.e. state, or, city, or county, or federal? or "The" government, i.e. every form of government regardless of size and location? Also, in mandating/passing these "repulsive laws" could an elected government -- say, the State -- use a non-elected branch of that government [bureaucrats] as an excuse? Could it use compliance with/for a Federal mandate as an excuse?

Then come the tedious questions of:"How,and who and by what right, are terms "irrational"and "outrageous"? It may seem pettifogging to us but to a hungry, sharp witted lawyer it could mean getting that summer home by the lake.

[yankeedame]

It’s not just the Supreme Court, or all the Court system, which is composed of “bad citizens”; it is the whole of the legal profession....It is their attitude toward the Constitution, just as you say, that makes of them bad citizens.
Call me a cynic or a student of human nature but IMHO what you've just written merely proves the ancient saying: "Opportunity makes a thief."
How so? Read on...

Lawyers from both sides of the bench, have ceased to regard the Constitution as a rock upon which is founded the justice due a free people.
And why have they (as a group) done this? Simple. B/c it no longer pays -- literally and figuratively -- to regard the Constitution as a rock upon which is founded the justice due a free people.

Lawyers have always been (in)famous for "massaging" the law, and in the past, say up to 40 years ago, this massaging failed more times than not (but succeeded just enough time to keep trying). But over time it succeeded more and more, then more times than not; and the payouts became bigger and bigger, with more and more lawyers noticing this. Until it came to a point where any lawyer who still follows the straight-and-narrow, and there are many unknown, unsung that do, was/is considered a patsy, a chump, a fool, or a loser.

As I said before: "Opportunity makes a thief." And if your average lawyer is quick to spot anything --it's an opportunity!

[Alamo-Girl]

Thank you for your reply!

If representative governement is working the way it was intended, then it is unlikely there will be "irrational or outrageous" laws. Nevertheless there are representatives who say one thing to their constituents when running for election and re-election and do quite the reverse when they are in D.C.

As I recall, that was the complaint which sank Tom Daschle.

The example I used was whimsical and based largely on the Chinese mandate of only one child per family. It would take a truly extreme left wing government to come up with such a law.

Perhaps a more "real world" example would be the Federal government outlawing private ownership of all kinds of guns. No doubt people could and would be successfully prosecuted in New York, California or Massachusetts where the public would generally agree and/or acquiesce.

However, when it comes to that particular right there are large numbers of people who will not acquiesce. If they are in the majority - such as in most places in Texas, Montana, etc. - then I wouldn't hold my breath for a successful prosecution. In those places the jury pool would likely acquit no matter what the facts or law say.

As betty boop observed, the jury cannot nullify a law across the board - but it can make the law of no effect case by case, time and again, by acquittals.

So far there has not been a law so repulsive that parts of the country would resort to such legal rebellion. But the option is there and the only remedy for the government would be to remove the Constitutional guarantee of a jury trial - and that would put the entire crisis before each and every state to ratify.

[joanie-f]

Jean, there are so many exceptional posts on this excellent thread!

I'd like to make one personal comment on your expressed discomfort early on with the Founders’ wording as to the unalienable rights of ‘life, liberty and the pursuit of happiness.’

I, too, have always been uncomfortable with the ‘pursuit of happiness’ wording.

I teach our adult Sunday school class at church, which generally consists of between forty and sixty adults, ranging in age from about twenty-five to eighty.

In one of my lessons about three years ago, I brought up the fact that I hold our Founders in deep reverence, but that I do take issue with that portion of their wording in the Declaration.

I explained that, in my own personal experience, any time I ‘pursued’ happiness, I rarely, if ever, achieved my goal. And the happiest times in my life have always occurred simply as a by-product of making ‘right’ choices (as opposed to convenient, self-serving, or popular ones), rather than seeking happiness (a nebulous term, to begin with) as a goal in and of itself.

During that particular Sunday school lesson, my reference to that portion of the Declaration was only intended to be mentioned in passing. But, once that subject was opened to discussion, we spent the entire remainder of the hour focused right there, with many of the class members relating (sometimes very heart-rending) stories of their own that seemed to support the notion that happiness generally cannot be ‘pursued,’ but rather that it is a natural (and sometimes unexpected) result that occurs when we are willing to choose the ‘right’ path in pivotal life situations.

I do wish the Founders had acceded to the ‘right to property’ wording instead, as it appears in several other colonial documents. Under the rights established by the First Continental Congress: Declaration of Colonial Rights (1774), the first ‘right’ established for the English Colonies in North America is that they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever a right to dispose of either without their consent. And Boston's 1772 Rights of the Colonists echoed the same: Among the natural rights of the colonists are these: First, a right to life; secondly to liberty; thirdly to property.

I, for one, believe that the Founders’ (albeit small) divergence from Locke’s wording in his magnificent treatises on liberty was, in this particular case, a dilution rather than an improvement.

Again, Jean, many thanks for your superb essay at the head of this thread, and for inviting, and contributing to, the extraordinarily insightful comments that followed!
~ joanie …

[betty boop]

...in my own personal experience, any time I ‘pursued’ happiness, I rarely, if ever, achieved my goal. And the happiest times in my life have always occurred simply as a by-product of making ‘right’ choices (as opposed to convenient, self-serving, or popular ones), rather than seeking happiness (a nebulous term, to begin with) as a goal in and of itself.

Joanie, my personal experience has been the same as yours. And you put your finger on precisely my own misgivings about the "happiness" language here: It is self-defeating to make it a goal, for then it will most probably elude your grasp. For there can always be imagined a yet greater happiness to pursue. IOW, the goal post keeps moving, ever just beyond our grasp. To me, happiness is indeed a by-product of right choices in life, of "doing the right thing at the right time." To live life in the love of God and neighbor is, to me, the best presciption for happiness in this life.

Within the framework of meaning of the DoI, "property" would probably have been the more suitable term. For property is a man's "substance," the wherewithal that fosters his ability to live in liberty; i.e., so that he is not dependent on others for the maintenance of his life and his freedom.

Thank you so much for sharing your experience regarding the adult Sunday school class you taught. I had a similar experience at the beauty shop (of all places) recently. It is amazing how thoughtful and forthcoming your so-called "average person" can be when provoked by questions that go to fundamental problems of human existence.

Thanks again, joanie, for your beautiful and insightful essay/post!

[Alamo-Girl]

Thank you both for your excellent essay-posts!

I agree that happiness is loving God absolutely and loving neighbor unconditionally. That is the Judeo/Christian proper state of being (Matthew 22). I do believe it can and should be pursued by walking with the Lord (sanctification).

It is not, however, the point of "happiness" in the DoI. There, the meaning was earthy property at least from the apparant origin of the phrasing.

[YHAOS]

“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 descendants 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.”

I say: Let Not Your Heart Be Troubled! [grin]

If ever there was a time to give in to despair, it would have been over thirty years ago. We were faced with an undeniable, though preventable, defeat in Vietnam; Democrats out-numbered Republicans; a Republican President was about to resign in disgrace; our university students were more radicalized than either their faculty or administration; the economy was terrible and promised to become worse (and it did, thanks to a numb-skull Carter Administration); the Supreme Court had just blessed unrestrained abortion; Democrats had complete control of the agenda; it had been ten years since the first clear conservative voice in nearly forty years had suffered a devastating political defeat, and no relief was in sight (does anyone want to claim now that they were certain then that relief was but six years away?); the so-called mainline churches, though beginning their now-obvious decline, were our only powerful spiritual voices and they were determined to turn us all into good little socialists; the Big Three networks and the major newspapers - all Liberal - had a strangle-hold on news reporting; ultra-left advocacy groups were making such a din no other voice could be heard; and Al Gore was years away from inventing the Internet.

“For where two or three are gathered together in my name there am I in the midst of them.”

. . . . . Matthew 18:20

What the elites of our society had not counted on is that, where there is a demand, measures will be taken to satisfy the demand. That is not simply an economic principle, it is a principle of human action (see Ludwig von Mises, et al). It may be that some responsive action turns out to be wrong-headed (you mentioned new-ageism), but that action will be punished, not rewarded, and behavior will again be modified. Or, not; and, this is where it sometimes becomes funny.

For instance; the consternation of Democrats at their inability to retain or regain political power. Apparently they cannot connect their behavior to the results they have obtained. But, Democrats don’t seem to be alone in that. It’s been noted, more and more of late, that Republican office-holders, in increasing numbers, are coming to act very much like Democrats. They’ve seen what happened to Democrats, yet they adopt Democrat behavior. Is it just barely conceivable that it isn’t the party that’s the problem so much as it is the political power? (I think it is the party, but the thirst for political power undeniably plays a deadly role as well)

What’s not funny is the Catholic Church. For years the power elites in the Church knew they had a problem with homosexual priests using the Church as cover to screen themselves from the consequences of their sexual predations, yet nothing was done. Now the curse of the dual loss of membership and of priests has brought the Catholic Church to understand the ends do not justify the means (a priesthood had to learn this?) Not only did bad priests drive away members, just as in money, the bad priests drove out good applicants for the priesthood (again, a priesthood had to learn this? - they didn’t know that good must drive out bad, or the reverse will be the consequence?).

It seems apparent that increasing numbers of Christians have heeded the message of Matthew 18:20 and have opted out of the mainline denominations. It must be just as apparent, that this is an interim action, and not the final step in resolving the problem of an inattentive ministry. Surely, the grand ministerial authorities must know they are losing their flock, even if they cannot yet bring themselves to face the prospect. When they finally come to grips with the fact of their declining power, in effect a profound rejection by the majority of their flock, their reaction may, or may not, have a funny element to it. That remains to be seen.

“Personally I think the only way out of this impasse is a major spiritual revival.”

Pesonally, I think you’re right.

[YHAOS]

“WRT jury nullification, it doesn't nullify the egregious law, only its application to the specific defendant.”

Having its origins in Medieval England, jury nullification was often used to combat the actions of corrupt or oppressive officials, and was primarily concerned with criminal law, although its use was instrumental in developing the idea that the truth was a proper defense to libel in a civil matter. It was also used to combat laws persecuting Quakers in the 1660s and thereabouts.

It has generally been admitted that jury nullification does not extend to determining the admissibility of evidence; does not include a right to make law, but only to determine existing law as found in the statutes; and, did not include the right to fix punishment for crimes (oddly enough, now a responsibility written into the law in some jurisdictions).

I like the idea because it confounds arrogant officials who are kept guessing about what might happen if they are thinking about corrupt acts, and because it might serve to occasionally abort an obvious injustice. The dark side of the concept includes its use through much of the Twentieth Century to deny justice to blacks in the South, when their predators were white.

[YHAOS]

“. . . it would surely take something extremely oppressive before people would abandon the stability and security of home to challenge the government. I could only see this happening if the government (typically through a tyrant the likes of a Hitler) were to declare martial law without cause, stopping elections and oppressing the people by military force.”

If ever such a thing should happen, it almost assuredly would be at the hands of the blue helmets of the UN, or some mercenary force, and not at the hands of our own military. They would not relish the prospect of victimizing their wives or sweethearts: their mothers and fathers; their brothers and sisters; their neighbors and friends. Our military is a little different than many; they do not swear allegiance to a personage; they swear to preserve and protect the Constitution of the United States of America. As long as we have an officer corps and noncoms who instill that understanding in the hearts and minds of our servicemen and servicewomen, the Republic is safe from that quarter.

This is why Liberals so hate our military. They know they cannot turn it into their own little personal sociological playground, that it is loyal to the Constitution and the Republic, and that it cannot be politicized. If you ever have someone tell you that they hate our military, you must know that you are confronting a budding little petty tyrant, who would become, if given a chance, a very big bloody tyrant. Treat him/her as though you have just encountered a poisonous snake.

[YHAOS]

I see you, I, and Shakespeare are of one mind on this subject.

“Until it came to a point where any lawyer who still follows the straight-and-narrow, and there are many unknown, unsung that do, was/is considered a patsy, a chump, a fool, or a loser.”

I would convict them for being people of integrity; people such as Thomas and Scalia (and, hopefully, Roberts). Let’s not forget the lower bench; Owens, or Brown, and many another who, as you say, follow the straight-and-narrow, and labor in obscurity.

“Lawyers have always been (in)famous for "massaging" the law”

Indeed. Nonetheless, I hold the ladies and gentlemen of the bench primarily responsible for our present embarrassment. It is they who are supposed to be possessed of the maturity of mind, the judicial temperament, which obliges them to restrain their more berserk colleagues.

[KC Burke]

My goodness, what a thread.

I haven't read every post as closely as I might, but I do have a small issue I wish to raise with you and others.

You and most of the other posters have referenced that old phrase, "original intent" which I look upon as a trap.

Madison, amongst many others, drew the distinction differently.

Madison steadily maintained the standard to uphold was original understanding. And, whose "understanding" was it to which he was referring? The people(s) of the states in ratification.

Why is this thing "intent" a trap?

It refers to a gifted group's (the founders) intent -- albeit a group that elites of any age can liken themselves to and additionally debate intent in a way the is far more flexible than it should be.

Understanding of a general population is, however, very definable from the writings of the time. This was a populace informed on the issues and nuances like no other. They were readers of constant pamphlets on the subject culminating in the Federalist Papers.

Understanding then relates to a people and is discernible. Intent refers to a group (law givers or law bestowers) and is more debate driven and lends itself to issues of rationalist improvement by each age's self-perceived or culturally perceived intellectually elite.

The common soldier, the simple merchant and farmer of that age is who secured my rights. And so, it is up to us to hold them, not government and not even our own keepers of intellectual power and reason.

Take this small coat, Original Understanding, and try it on. Wear it for certain days, when you can, and you will get to like it.

[KC Burke]

Perhaps you have missed this as I had until this evening. Betty has cast a giant shadow, and I sit here with a pen light and my fingers trying to make a bird with one hand and see it on the nearby wall.

[Alamo-Girl]

I agree with your assessment of the U.S. military and the threat of the U.N. peacekeepers. That's why I take the position that no U.S. soldier should ever report to a commander from any other country.

Thank you for your reply!

[joanie-f]

I like the idea because it confounds arrogant officials who are kept guessing about what might happen if they are thinking about corrupt acts, and because it might serve to occasionally abort an obvious injustice ... YHAOS

Well said.

And, Jean, I also applaud your, Of course, WRT jury nullification, it doesn't nullify the egregious law, only its application to the specific defendant. But I imagine if nullification happened often enough respecting an egregious law, it would effectively be rendered null and void.

It was for that very reason that jury nullification is a right that was defined and strongly defended by our Founders. They insisted that juries should serve an integral role in determining the 'rightness' of law, and that the enforcement of law should depend, in part, on the positive scrutiny it received in subsequent jury trials.

Another 'grey area' in our history in which juries have employed nullification in order to strike back at what they considered to be morally repugnant laws (in addition to the denial of justice for blacks in the south, as YHAOS has cited) occurred in the late eighteenth/early nineteenth century with many attempted enforcements of the Alien and Sedition Acts. The acts were viewed by many to be blatantly tyrannical and unconstitutional, and ruling 'not guilty' in cases brought to court under those particularly unpopular acts was often considered courageous and honorable.

More recently, jury nullification has been put into practice in cases involving mercy killings, in which jurors sincerely believed that the killer was acting only out of concern for the victim, and believed the law to be too intractible in a specific case.

As Betty has observed, each example of jury nullification is unique to a specific case, and does not affect the law itself, other than to ignore it, to one degree or another, by refusing to enforce punishment in a specific instance.

Personally, I believe the concept is a good one -- especially in this increasingly secular and hedonistic era in which a growing number of laws seem to defy logic, common sense, and the moral/religious consciences of 'good' people ... and in which an increasing number of laws are passed with their explicit purpose being to (generally covertly) expand the power of government and proportionately decrease the freedom of the individual.

At the same time, jurors (the majority, I suspect) who are not aware that they can choose to invoke nullification of a law that they view as unjust or immoral, are not always advised of that prerogative. Indeed, they are often instructed otherwise.

So, as is the case in much of legal/judicial procedure these days, consistency is an apparition, and the futures of many of our fellow countrymen, and our businesses and institutions, depend largely on the 'luck of the draw' -- as regards the informed, or uninformed, nature of the jury, the willingness of the judge and/or attorneys to advise the jurors of their options, and the courage and confidence of each member of the jury in his/her ability to put nullification into practice.

Unfortunately, the acceptance of the practice of jury nullification has waned as the number, and illogic/tyrannical/special interest nature, of laws has increased over the past two centuries. Early in our history, judges made it a practice of informing juries of their nullification rights (and if the judge neglected to do so, the defense attorney would often correct his oversight). Today, most judges not only neglect to do so, but many go so far as to falsely instruct the jury that their only authority is to decide whether a law has been broken, whether or not they believe the law to be moral or just.

In several recent cases, a judge has even seen fit to remove a juror, upon receiving information that that juror intends to deliver a verdict that will nullify the law upon which the case rests.

If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty (1788) ... Bancroft, History of the Constitution.

Perhaps more than any other time in our history, we would be wise to reflect on John Adams' two-plus-centuries-old wise and insightful advice:

It is not only his [a juror's] right but his duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.

The increasing suppression of the juror's right of nullification represents yet another item in a long, and growing, list that reflects the deadly transformation of this republic's government from one of, by and for the people to something much more toxic and tyrannical.

~ joanie ...

[Alamo-Girl]

Thank you so much for your excellent essay-post!!!

Today, most judges not only neglect to do so, but many go so far as to falsely instruct the jury that their only authority is to decide whether a law has been broken, whether or not they believe the law to be moral or just.

Indeed. This is how the judiciary usurps power. Perhaps someday a dismissed (and deep pocketed) juror will sue all the way up to the Supremes so that this practice can be ended.

[betty boop]

You and most of the other posters have referenced that old phrase, "original intent" which I look upon as a trap.... Madison, amongst many others, drew the distinction differently.... Madison steadily maintained the standard to uphold was original understanding. And, whose "understanding" was it to which he was referring? The people(s) of the states in ratification.

Great points, KC Burke! I can agree with Madison that the standard ought to be "original understanding" (which is primarily cultural), but do note that the Framers also had an "original intent" (which has to do with the "mechanics" of their construction): To establish a polity based on the rule of law, not of men; one that is based on the consent of the governed, who remain sovereign; and to achieve this end by means of the constitutional separation and balance of powers.

So IMHO it's not an "either/or situation": It's both.

It's so good to see you again, KC! Welcome to this thread, and thank you so much for your excellent insights!

[betty boop]

The increasing suppression of the juror's right of nullification represents yet another item in a long, and growing, list that reflects the deadly transformation of this republic's government from one of, by and for the people to something much more toxic and tyrannical.

Indeed, joanie -- this would be a case of judicial supremacy, indicating that the judge is insensible of the fact that, under the Constitution, the people are "sovereign," not the judges. Not to put too fine a point on it, but the judge who would cite a juror for contempt of court on suspicion that juror might nullify is usurping a retained power of the people and is committing an unconstitutional act.

Thank you ever so much for your insightful (and informative) post/essay!