Rush Limbaugh May Not Understand Liberty

March 15, 2005 | Jack Glennon

[tahiti]

I am listening to the Rush Limbaugh show at this very moment.

I am having quite a bit of difficulty reconciling Rush Limbaugh's remarks about judges imposing their morality and/or personal preferences on the rest of the citizenry as result of their constitutional decisions.

Yes, there are decisions that have been made based on a personal preference of a judge.

Most recently the Supreme Court decision to prohibit convicted death row felons under 18 years of age from being executed.

Original meaning of Amendment VIII, "...nor cruel and unusual punishments inflicted," could never be interpreted to prohibit convicted felon under the age of 18 from executed without inserting an arbitrary personal preference gleened from what the "rest of the world" does.

However, Rush Limbaugh is advocating a tyranny of the majority, in a sense, through his advocation of enacting laws passed by a poplulist legislature, which would be nothing less than a consensus of morality and/or personal preferences of a group of people versus the morality or personal preferences of single judge.

The constitutions, either federal or state, are meant to limit government power and protect the individual rights of all citizens.

For example, Mr. Limbaugh, your current legal battle with the state of Florida over your use of pain killing drugs may be analyze from a constitutional perspective of original meaning.

What individual right is more fundamental than an individual, free citizen, deciding how he or she shall treat their pain?

How and where does any government entity, constitutionally exert their power to prohibit an individual from determing how much pain killer they need to consume to satisfy the discomfort of their personal pain?

And in fact, the federal constitution, the federal Bill of Rights, not the Bill of Privileges, guarantees that right to make such a decision.

Amendment IX

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others (rights) retained by the people."

Again, the constitution is meant to "limit" the power of government and the tyranny of the majority from imposing the majorities morality and/or personal preferences on an individual.

Is it not the basis of liberty, the basis of acting like a free citizen, living in a free country, to make the individual decision on what and how much an individual shall consume of a chemical or food for medicinal reasons or just plain pleasure?

Is that not a right "retained by the people?"

Without some type of "judicial" review of tyrannical laws that violate the constitution(s), how do we prevent the trampling of guaranteed rights by the poplulist, personal preference, morality driven majority? (bear arms, search and seizures, speech, religion, etc., for example)

Those citizens who are of the Christian faith, what protection of your religiion will you have if and when Muslims are the majority in the U.S., if their is no judicial review to help protect your right to a Christian religion and Muslism being imposed in your life?

The proper and constitutional way for the majority to have their will enacted is to "amend" the constitution, not to pressure legislators to enact unconstitutional laws.

When laws can deny and disparage rights, the constitutional will be rendered useless and the constitution will mean only what the majority wants, stated through their legislators and enacted laws.

Enacted laws are below the covenants of constitution(s)in the hierchacy of the rule of law, if not then there is no need for a constitution.

[JoJo Gunn]

You do not stop the threat of a "tyranny of the majority" by allowing a "tyranny of the minority."

Well said.

[NeoCaveman]

Dope smoker tripe vanity alert!

Good time, rock 'n roll, plastic banana vanity alert!

[longtermmemmory]

I think Rush exepts from Justice Scalia said it best.

The Constitution is living via the amendment process.

Women obtained the right to vote via an amendment. There was no only men vote clause in the constitution. There was no land owners vote, or even an age stated.

In today's environment the courts would simply impose it.

I actually think part of this comes from the fact that most cases are NOT appealed. Not appealed for reasons money, or simply no court reporter having been hired for keeping a record. Judges then know they are "a god" within their courtroom/chambers with few constraints. The attitude is reinforce and carried over on promotions from trial to appellate levels.

[Texas Federalist]

In a republic, the majority does rule.

In a democracy , the majority rules, a fact which as this poster has noted leads to tyranny. In a Republic, the majority rules subject to certain restrictions set in our Constitution designed to protect the liberty of the minority from infringement by the majority. Strict constructionism is flawed because it does not give effect to all the Constitutional safeguards of liberty the framers intended. For example, strict constructionists like Robert Bork say the Ninth Amendment should be completely ignored because it is unclear. However, should any provision of the Constitution be ignored? There is historical evidence as to what the Ninth Amendment means, and judges should be trusted with interpreting that. The difference is, this "interpretation" would entail referance to original meaning, while liberal activism has no basis in original meaning to guide the judges because it is based on the premise that the Constitution is a changing document.

[international american]

Where do I buy it??

[LS]

This is totally off base because the courts ARE the last interpreter . . . of the CONSTITUTION and the CONSTITUTION doesn't say anything in "cruel or unusual punishment" about minors getting the death penalty, which they DID WHEN THE THING WAS WRITTEN!!

[Dad yer funny]

ping for later

[Texas Federalist]

Tyranny of the majority? This is Marxist Speech.

Actually, this is Madisonian speech. It is the basis for much of the Federalist Papers.

[nicollo]

Yes, I, too, am fascinated by the sudden conversion of the Right to old school, William Jennings Bryan anti-court populism.

Back we go to Bryan's spokesman of 1912:

THE RIGHT OF THE PEOPLE TO RULE
by Theodore Roosevelt
March 20, 1912, Carnegie Hall, New York City

.... The only tyrannies from which men, women, and children are suffering in real life are the tyrannies of minorities. If the majority of the American people were in fact tyrannous over the minority, if democracy had no greater self-control than empire, then indeed no written words which our forefathers put into the Constitution could stay that tyranny.

Actually, Scalia is saying quite the opposite of Roosevelt in 1912, and, unlike Mark Levin, Scalia doesn't offer Roosevelt's panaceas of direct democracy and judicial limitations.

It's fascinating to watch.

Nicollo unmasked: Bromleyisms here

[Texas Federalist]

Actually, Scalia is saying quite the opposite of Roosevelt in 1912, and, unlike Mark Levin, Scalia doesn't offer Roosevelt's panaceas of direct democracy and judicial limitations.

I always thought of Thomas, rather than Scalia, of advocating more of a Lochner-era interprative style.

[The Ghost of FReepers Past]

You would never say majority rule is not tyranny if you have read it, unless you disagree with them. They (the founding fathers) were very much concerned with the real possibility of majority rule becoming majority tyranny. They give lots of famous examples. The "Golden Age" of Democracy in classical Athens was one. They showed how majority rule became hostile and oppressive to minority opinion and groups very frequently. Ultimately majority rule always ends in tyranny.

Reread Federals 10. It says majority rule -- as in a pure democracy -- CAN end in tyranny and we should guard against that. One way was to create a republic instead of a pure democracy so as to refine and enlarge the public views...and leave the public voice in the hands of representatives "so as to be more consonant to the public good than if prounounced by the people themselves." It also addressed the problem with the whims of the minority -- but saw the cure to that answered in the republican principle.

The federal Constitution addresses the great and aggregate interests, and local and particular issues are left to state legislatures.

Some quotes:

"Regarding different factions or interest, there are two ways to deal with these conflicts: one by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. ....The latent cause of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.....So strong is the propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts....It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole....The inference to which we are brought is, that the causes of factions cannot be removed, and that relief is only to be sought in the means of controlling its effects.....If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular votes. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquires are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

ON PURE DEMOCRACIES: Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in the possissions, their opinions, and their passions.

A republic offers the promise of a cure for which we are seeking.....

Etc...

[ManHunter]

Tahiti: ditto what the Ghost said (just saving time and bandwidth)

[nicollo]

That's a good question. The Lochner case was about equal protections and due process, as in it the Court annuled a State law that targeted a particular industry (home bakers).

We can guess where Thomas stands on "due process" as used by the moderns; to the progressives it was a dirty word. I wonder how Thomas and Scalia feel about that era. I heard a Ginsberg clerk actually praise Lochner... Strange world, indeed.

[PaRebel]

For an excellent read on the issue of Judicial usurpation of power, I highly recommend Michael Paulsen's "The Myth of Marbury"; find it at Northwestern University School of Law, Constitutional Theory, Colloquium Series. About 40 pages, but worth the time in my estimation!!

[Texas Federalist]

I had a law professor that argued the California medicinal marijuana case in 2001. He included an argument encouraging the justices to find an unenumerated privacy right in the Ninth Amendment. He said the only two justices that he perceived as being interested in the argument were Thomas and Stevens. Wierd is right.

[countreegurl]

Hi - First time poster here...

This has been a very interesting thread. I found the following excerpts from the US State Dep'twebsite that I thought might be useful to the discussion...

http://usinfo.state.gov/products/pubs/principles/index.htm

In regards to democracy...

"Democratic societies are committed to the values of tolerance, cooperation, and compromise. Democracies recognize that reaching consensus requires compromise and that it may not always be attainable. In the words of Mahatma Gandhi, "intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit."

Democracy and majority rule...

"Democracy rests upon the principles of majority rule, coupled with individual and minority rights. All democracies, while respecting the will of the majority, zealously protect the fundamental rights of individuals and minority groups."

And this in regards to the consitution...

"Since a constitution is written at a certain point in time, it must be amendable so that it may adapt to the changing needs of the people in the future. Since the flexibility to meet unpredictable and unforeseeable challenges in the future is important, constitutions are usually written to specify general principles of government."

And this about the judiciary...

"The power of judges to review public laws and declare them in violation of the nation's constitution serves as a fundamental check on potential government abuse of power -- even if the government is elected by a popular majority. This power, however, requires that the courts be seen as independent and able to rest their decisions upon the law, not political considerations."

Here is another state department link worth noting...

http://usinfo.state.gov/products/pubs/whatsdem/whatdm2.htm

[longtermmemmory]

It is an interesting postition we find ourselves. Legislators do pass and make laws, but the courts redefine those laws to whatever end result whims they have.

Why should the legislators even bother? Why make laws if the courts are just going to make any legislation irrelevant anyways?

The joke has always been that Democrats would have outlawed voting if they ever find out it really mattered. Well in essence, the left has "outlawed" voting by making voting irrelevant. It does not matter who gets elected because the judicial left will impose the proper leftist resolution.

[penowa]

I don't know what you were listening to and since I only heard some of what Rush was talking about while I was driving, maybe I shouldn't comment, but what I heard him remarking on was the judge in California who declared that a ban on gay marriage was unconstitutional. In the event that the ruling is not overturned by a higher court, then the judiciary has once again, like Mass., changed the definition of marriage despite the fact that this has been voted on by the people of California and has been constitutional since CA became a state. Instead of amending the constitution, the only judicial nominees who are permitted to become judges are those who have a political agenda matching the far left so they can both legislate from the bench and strike down existing laws without following the legislative process. This is "tyranny of the minority." If you have a problem with this, then maybe you need to look at your definition of "liberty," not Rush's.

[Apogee]

I take issue with his constant notion that the bill of rights only applies to US citizens, contrary to the Declaration, and many court decisions. They are either human rights or not.
The folks who died to ensure these rights didn't give them to us, they preserved them for us.