Posted on 03/14/2002 5:50:19 AM PST by wwcc
But consider how Job must have felt. How the Romans felt when the Empire was failing. How the Jews in Germany felt after 1938. Consider the state of mind of Hobbes when he was writing Leviathan, or of the fictional Hamlet. Tragedy and uncertainty are the lot of every man. Courage and determination are the only way to face them.
Who can predict the future? Only charlatans claim that with any certainty. Great nations have fallen unexpectedly and with great suddenness. Shall we all then run and hide? The only thing an honorable man can do, the only thing which will give him peace of mind, is work for what he believes is right and search out the company of those who he admires and who please him.
That's the only wisdom I claim.
I do not deny that such freedom is still very attainable. But it is being threatened. My thoughts are for my children, who yet cannot walk or talk. Your advantage is that you have lived longer and seen more. Mine is that I have grown up generation x/y. We don't know who we are, where we came from or where we are headed or why. We are ignorant without roots or guidance. Most of my age ask: what is marriage and why? Who were our Founders, but slave owners, and why? Our teachers have killed our Founders, the Constitution, our heritage, we in turn kill our children. Brave new world.
Wisdom enough. and well worth heeding. but to see our country collapsing, a nation of much promise, is disheartening
and not to know what can be done.
That's the challange that each individual and each generation faces. How one faces it is the true test of manhood. It's both a weakness and a strength. The latter because no one knows for sure. Not just you but no one.
There's no doubt that a way of life is passing. That's always sad. But what replaces it might be better. That depends on your efforts and the efforts of your children and your friends and their friends. America has been through this many times and - so far - come out better and stronger each time.
Here's an article from a thread which was deleted (I don't know why). I post it because it shows - quite convincingly, I think - that America of the past had plenty of problem too.
I am returning once more to the point on which we really disagree. You say that establishing objective limits is not possible. Here you are in error. Such objective limits were established, until Oliver Wendall Holmes changed them, making them subjective, which amounts to admitting their are no objective limits at all. The Roe v. Wade decision is an excellent example of the result of throwing out objective standards, agreed to by common law and common understanding of interpretation. You might say that we have such a common understanding but that it has merely changed and now is more in line with Holmes' understanding of a "living" document. The point I keep reiterating is that the living document theory is a pretext only for judicial usurpation of the legislative function of government, not in line with John Marshall's understanding of interpretation limited by the words of the document itself. Once again you have returned to the position that any interpretation at all is a correct interpretation regardless of the violation of the meaning of the words . Yours is an argument in favor of judicial usurpation. They control the meaning of the words, therefore they in a very real sense make the laws.
This is not the legitimate function of the judiciary. You might respond, "then how shall we enforce rules of interpretation?" Now this is a legitimate question. Both the executive and the legislative branches shirked their duties to defend legitimate interpretation of the Constitution. Moreover the states can defend their sovereignty by passing new laws (though their primary defense had been stripped by the 17th amendment). But, the American people are the ultimate guardians of the Constitution, and the Constitution provides means for us defending our rights within those rights themselves, namely the first and second amendments: our right to free speech, and our right to defend free speech with the ultimate defense. But all these protections against what had always been considered the weakest branch of government have proven ineffective, because these walls and fortresses of defense provided by our Constitution have not been manned. The guards were asleep at their stations or willing accomplices and even cooconspirators or instigators like FDR.
Say what you will, the truth is that usurpation has occurred, our Constitution weakened, and we are drawn closer to or deeper into (as you will) tyranny.
One last point. You do not seem to understand the gravity of this change in interpretation. Our Constitution is our fundamental law, on that I am sure you agree. But perhaps you do not understand the supreme importance of that statement. Our Constitution and our compliance with it is all that distinguishes our Republic from any banana Republic. It is a truth long known and agreed to by ever political thinker of merit who at all understands democracy: that democracy without an enduring Constitution, whether written or unwritten, devolves into tyranny, always and very soon.
Now by saying that whatever the judiciary asserts is a valid interpretation is a valid interpretation, you are saying that we have no Constitution at all but are ruled by dictate, that is by WILL merely.
I cannot stress this enough: words cannot mean anything you want them to mean. There is always room for debate. One of the differences between a good law maker and a bad, is that a good lawmaker leaves little room for debate. In constructing the Constitution our Framers made good law. Difference of interpretation is limited, until you argue that it is a living document. Law is written to prevent men from ruling on the basis of WILL. Laws have never been perfect but it is better than WILL. What prevents it from being WILL is the fact that words cannot mean everything. Again when you argue that words can mean anything at all, you assert that we are ruled not by law and judgment but by the WILL of a few. An agreement on the meaning of words (even though there is room for debate
Here's an example of a recent thread where I was completely wrong and am still confused. If you'd care to try your hand at it I'd much appreciate hearing your views.
"No one wants to say that any interpretation has validity."
This you assert, but then you immediately contradict yourself:
"But practically speaking establishing objective limits is not possible - they have no meaning except an operational one; whatever the Supreme Court says is a valid interpretation is one."
You are saying not that any interpretation is valid but that any interpretation of Supreme Court Judges is valid. You admit they are tyrants. Whatever they say is law. What you assert is that no longer is the Contitution the Supreme Law but rather any Utterance of the Supreme Rulers. Using that logic I could ask: who then is to say what the Supreme Court means in their opinions. You see it is a slippery slope, nay it is a precipice or rather the abyss into which we plunge.
Now do you understand my argument? When Holmes began debating the meaning of meaning, he poisoned the law and language. The result to which we are witnesses is confusion. And we grow more and more confused so long as Holmes' "interpretation" of interpretation is considered legitimate.
And I will tell you honestly that the debate on the meaning of meaning, or "do words have meaning", is perhaps the most confusing debate to engage in. For if you conclude that words have no meaning, how can you have won the argument? Aristotle has a very interesting sentence or two on this subject but I cannot remember where (or I may be absorbing his story of a certain radical skeptic):
Essentially he says that if words have no meaning we cannot speak. Then he procedes to show the instance of a man who concluded that words have no meaning: the man did not speak for the rest of his life. Ancients were much more consistent in their logic and action than any moderns. Today those who argue that words have no meaning continue speaking as if they had lost the argument on meaning.
I try not to think too much about it because the arguments lead to absurdities. The fact that we speak and understand one another disproves the conclusion in my opinion and the debate has no merit.
Whoever said it, it does not matter. It is a bad saying. A Supreme Court Justice is not elected and therefore is cannot be called a plebiscite of any kind. Even so "miniplebiscite" insinuates that there are limitations on judicial interpretation. As I have said above there is room for interpretation in any law, even a good one, because of the very nature of law. Laws do not provide for every circumstance, so that as new circumstances arise, a new precedent for applying the law is needed. Moreover, even in existing law, such as the Constitution, there is room for difference of opinion. But in order for it to be law at all, it must be agreed that the text of the law cannot mean whatever a judge WILLS it to mean. That is my critical point.
It may be said that every new judge constitutes a mini-revolution (not a plebiscite since judges are appointed). But let us stress the word mini. A tiny change in interpretation. When the Warren Court came to power, a supermega-revolution took place. They threw out the meaning of words of the Constitution and replaced it with their "living" WILL.
As opposed to other bodies of government, the Supreme Court Justice's sole duty is to guard the Constitution. But we have not guarded the guards as is our duty, and they have substituted their WILL for the Law of the Land.
I won't discuss Holmes' philosophy with you because I don't feel competent to do so. But I am in agreement with his general idea that each generation decides what is moral and legal. That absolutes are difficult if not impossible to capture.
AMEN! more people need to realize this as fact!
Each generation decides what is legal. What is moral is more fixed, and unchangeable. It is we who change, not the fundamental morals necessary to good society.
The problem with Holmes is that he thinks it is for the judiciary to decide what is moral or immoral and change the law by "reinterpretating" it. The laws are changeable by the legislatures, federal or state, by local communities, by the unwritten mores of the society.
I am surprised that you do not see that you contradicted yourself when it is very obvious.
We need not grasp that intention. The words of the Constitution are sufficient in and of themselves. They are good law. Moreover, any difficulties we may have understanding antiquated uses of words is easily remediable by looking to the precedents.
It has been some time but I had studied Constitutional Law and read many of the groundbreaking cases. There is a distinct break from tradition in the Warren Court. Their decisions flew in the face of precedent and their judgments are false, based on twisted interpretations of the words in the Constitution. But read for yourself the decision in Row v. Wade. Their is no conclusion possible but that they are making laws up ex nihilo.
But perhaps I shall go back this afternoon and refresh my memory by reading some of those cases. It has been several years since I read them.
Very true. And again I have no argument with you here. My argument is that since the Warren Court, they added a new complexity: setting new precedents which distort the meaning of words out of all context, adding new words never there, establishing entirely new meanings for words altogether.
If you really believe that "interpretation" has become so extreme as to nullify the meaning of words then you must assemble a body of examples and then get a sufficient number of citizens to agree with you so as to result in action. Generalities simply will not do.
None of this is easy. If it turns out that you cannot get a sufficient number of citizens to agree with you then you simply cannot have your way.
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