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To: pickrell; Publius; Billthedrill; Jim Robinson; endthematrix

In answer to your primary question: "Would you have the time to start a thread specifically tailored to further polish that into a 'floor-presentable' advocacy, and could you recruit enough (and I ask this without denigration to anyone) 'peanut gallery persons' to run your final, last best argument by..."

the answer is that I would have the time, and the willingness to do some of those things, but I would not be willing to actually START a thread. Starting a thread on FreeRepublic is a perilous thing. There are actual rules, and rules of etiquette. Now, I DID start one thread, once, on the Religion Forum, about possible Catholic/Orthodox Reconciliation, but that is a small forum on a very particular issue of interest to...well...nobody but Catholics and the Orthodox. To actually START a thread on the political fora?
I don't want to do that.
I would publish under a thread somebody ELSE started, but I am not comfortable unfurling a banner of my own like that, on this website.

As to the ideas themselves, well, they are what I believe.
I sit in a strange position, sort of in a Franco-American straddle, looking at both countries with the bemused view of an insider who's an outsider, and an outsider who's an insider.
Mostly, I am ruthless about consistency.

If someone is going to argue for the pure text of the Constitution as the basis for certain rights, he will either do it as a pragmatist who admits he's trying to achieve a goal, or he will argue as a philosopher and insist upon his interpretation as a matter of right or wrong.

I am a pragmatist. That is why I am willing to say things like: "Roe v. Wade is unconstitutional, because the Supreme Court exceeded its power, but so what? It's the Constitution NOW, because people have accepted that the Supreme Court has that power. So let's start from the stable foundation of what everyone knows the law is, and honestly make arguments to change it.

I am perfectly capable of being a theorist. Theoretical thought about absolute values is much easier (and more entertaining) than pragmatic thought to achieve tangible and limited goals. The problem with theorists, though, is two-fold. First, they tend to become extremely passionate, self-righteous and priggish about their theoretical constructs...but secondly and more importantly, their theoretical constructs completely and utterly collapse every time you move to a different subject.

The truth is that our laws are a patchwork of ad hoc solution to immediate and long-term crises. Nobody is willing to invest the time or energy into permanent solutions for the ages to perennial problems of the ages. But lots pretend to...before rushing pell-mell straight to the pragmatic conclusion they prefer, while insisting that they are being purist and rational and eminently theoretically true to their values.

I am going to give you some of the nastiest examples currently out there, to demonstrate what I mean.

There are plenty of conservatives who hold these four values simultaneously:
(1) Suppression of the printing of obscene material is constitutional.
(2) It is unconstitutional for the federal or state governments to restrict gun ownership, require registration, or to do anything else limiting firearms.
(3) There is no constitutional right to privacy, and therefore:
(a) Roe v. Wade is unconstitutional, and
(b) the Supreme Court is wrong: there is no constitutional right to consensual sodomy.
(4) The War on Drugs needs to be fought.

Now, if the conservative who holds these views is a pragmatist, he simply holds these views and agitates for them. But I haven't met many admittedly pragmatic conservatives on the West side of the Atlantic ocean.

Rather, American conservatives tend to be quite militant "constitutional originalists". They have not thought this through very well, or do not really, fully grasp their own arguments about the constitution in totum. Because if they did, they would see that that four-point agenda utterly collapses. You cannot simultaneously hold all of those viewpoints and be a TRUE constitutional originalist.

A true originalist observes, correctly, that the US Constitution applies to Congress, only, and only applies to the states where it specifically says so (which is in only a few places).
Now, what that means for our list is that there cannot be a FEDERAL law against publishing and reading child pornography, STATES can require gun registration and even make guns illegal, STATES have the sole power to determine the legality and limits on abortion and sex within their territories, and there can be no Federal War on Drugs. If STATES want to legalize, our outlaw, drugs, that's up to them. The power to prohibit use of drugs or suppress any sort of publishing is not granted to the Federal government by the US Constitution, and therefore it does not have it. THAT is TRUE originalism.

And it stinks to holy high heaven.
Apply that, and you're going to have drugs running rampant in the country, because federal enforcement is unconstitutional. And you will have an explosion of child pornography, because that's publishing, and the federal government can't pass ANY laws restricting that. California CAN flat out confiscate guns, because the Second Amendment binds Congress, not the States, at all.
The results of strict originalism are ridiculous and totally unsatisfactory. The American Founders were not really visionary geniuses for the ages. They made an ad hoc document for the issues of their times, and it only still works precisely BECAUSE nobody really fully respects it.

Still, conservative theorists use the Constitution as their rallying cry.
Well, ok, so if we're going to do that, then let's really do it.
Let's apply the full Constitution, as written.
That would be so very BAD, that before we get there, we'll need to propose a whole bevy of amendments to bring it up to date.

For example: privacy and sexuality. It's true, there's no right to sexual privacy in the Constitution. The Federal government can't regulate it. In theory States can do whatever they please. So, Griswold v. Connecticut, in which the Supreme Court struck down Connecticut's law that banned married couples from obtaining birth control, was formally an unconstitutional decision. And the Supreme Court decision that no longer allows states like Virginia and Mississippi to punish even married couples for having oral sex in their own homes as felony sodomy is also an unconstitutional decision.
Hey, that gets us back to originalism.
But it SUCKS. Mississippi has no business telling any adult s/he can't have oral sex. It is not the federal government's damned business OR the state's damned business OR the town's damned business. This is something that HAS TO BE protected constitutionally. Right now, it IS because the Supreme Court has said it is (thank God!). But if we really stick to originalist purism, then Mississippi can outlaw oral sex between married couples.
And that is an absurd and unacceptable result.
The Constitution is not as important as keeping government, ALL government, out of people's bedrooms. It is none of the government's damned business, and communities do not have the RIGHT to impose "local standards" that intrude that deeply into private property. Anywhere in America. No matter what.

Now, as a pragmatist, I look and see that the Supreme Court has imposed that rule on all of America. Mississippi's marital sodomy law is still on the books, it's STILL a felony in Mississippi for a married couple to have oral sex in their bedroom. But guess what. The Supreme Court says that the US Constitution contains a right of privacy which nullifies the Mississippi law. Of course that's factually wrong. The Constitution doesn't. But as a pragmatist, my view is "So What?" IF Mississippi has such a powerful (and hypocritical - let's put a secret camera in THEIR bedrooms) puritan lobby that it will not eliminate a law like that, well, then something has to sweep aside all such laws and make it plain that, in America, in 2006, the age when government at ANY level can regulate private sex is HISTORY. Nobody gives a damn what the Constitution says or doesn't say. That sort of law is beyond the power of government now, and if states won't get rid of laws like that, then something needs to come smashing down on them from on high that takes the power away from them constitutional or not. It's worse to have felony laws applying to private consensual sex than to have the Constitution violated.

That's what I say, as a pragmatist.
But I understand my Americans well. Americans are idolaters of the law. They go into severe cognitive dissonance at the thought of it sometimes being good for the law to generally be ignored. In the conservative movement, there is a drive for intellectual purism on the Constitution. Ergo the originalist movement.

And so my proposal bows to that reality.
That's why I suggest that we accept, as a party, that EXISTING Supreme Court precedent will continue to be good law, even though such decisions could not be taken in the future by a more correct application of judicial review as understood by the Founders. That acceptance of existing precedent means that private consensual sex between adults is a constitutional right that can't be regulated by the states or cities.
In order to bring the actual Constitution into line with the pragmatic reality that we MUST finally arrive at comes the proposed Constitutional amendment which says that private consensual sex between adults cannot be regulated by government. That restores the purism.

Now, as a pragmatist, I know that there are a lot of religious conservatives who will balk at enshrining that in the Constitution...and such an amendment might never pass.
Which is fine, because we've accepted existing precedent as law, and existing precedent is just that, so we get to the right result whether the constitutionalist purists amend the Constitution or not.

I've picked that subject because it is intensely personal to most people, and sharply highlights the constitutional issues.

Another is guns. Apply the Constitution straight, and the federal gun laws are illegal, but any state gun restriction is legal. The Constitution applies to the federal government. It says that the Federal government cannot infringe on the right to keep and bear arms, because a militia is necessary. That doesn't say the states can't well-regulate their militia any way they damn please. And that can include the decision that a militia is no longer needed, and confiscation of ALL guns. I don't like that result, but that's what the Constitution SAYS, if you apply it literally.

Well, ok then, what solution?
The solution is to recognize a Constitutional right of self-defense, a FEDERAL right to keep and bear arms, and put it into the Constitution. Opening the issue WILL subject it to regulation. There has to be some regulation of firearms. But it at least forces out the debate, and makes it national, removing the ability of San Francisco to say "No Guns", and removing the right of North Fidelity Alabama to say that everyone MUST carry a gun.

In the end, I want some intellectual rigor and clarity, and national rules that reflect the will of the people and common sense. On major moral issues, I do not believe that local variation is tolerable. I DON'T think that Mississippi should be able to regulate private adult consensual sex, or that Virginia should be able to decide that blacks and whites cannot marry, or that New York should be able to decide that life begins at birth and authorize abortion during normal labor.

I think that there are right answers to these issues, which represent actual abiding moral values that most people in the country hold, and that just like free speech, these should be national standards that override local preferences. Of course, that's what we already HAVE, in these cases, but it's all ad hoc and relatively dishonest.

I want honest discourse and debate. Law, order and constitutionalism are the conservative talismans. Therefore we have to genuflect to them. Let's do that honestly, by presenting a platform that enshrines constitutional principles on the right basis: amendment, rather than overreaching judicial review.

Immigration is a serious issue and problem. There are clear solutions, but neither party will go there. It's another example of something that has pragmatic answers which can be expressed in terms of law, the Constitution, and basic human compassion. But not by either existing political party. Not even close.


420 posted on 03/30/2006 9:58:42 AM PST by Vicomte13 (Et alors?)
[ Post Reply | Private Reply | To 418 | View Replies ]


To: Vicomte13
You can start with this:

Article IV, Section 4 of the United States Constitution "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion and against domestic Violence."

Note: It is NOT optional.

"If you can read this, thank a teacher. If you are reading it in English, thank a soldier."

ENGLISH ONLY - NO MORE BALLOTS IN SPANISH IN THE UNITED STATES FOR ANY ELECTION!

421 posted on 03/30/2006 11:53:06 AM PST by yoe
[ Post Reply | Private Reply | To 420 | View Replies ]

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