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Freeper Investigation: Original Intent and Constitutional Jurisprudence
Freeper Research Project | September 19, 2005 | Jean F. Drew

Posted on 09/18/2005 9:30:23 PM PDT by betty boop

Freeper Investigation: Original Intent and Constitutional Jurisprudence
by Jean F. Drew

English and Anglo-American law’s core principle is the opposition to abusive power as exercised by the state. As Dan Gifford writes in “The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason,”

“The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. It is from this basic tenet that English law and Anglo-American law embody the following principle: The individual has rights against the state….

“The danger posed by the usual suspects in government for the sake of power is obvious. However, not as obvious is the more insidious danger posed by a list of usual suspects claiming to be [society’s] defenders…. Their attacks on God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos — the five essential elements that make our system work — as obstructions to social progress have been devastating….”1

Without doubt, “God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos” informed the worldview of the Framers of the Constitution and constitute that document’s spirit, meaning, philosophy — and vitality.

Russell Kirk corroborates this understanding, stating that the roots of American order trace back to four historical cities: (1) Jerusalem, in both the Israelite and Christian developments; (2) Athens, with its classical view of man as a “thinking animal” who possesses reason and soul; Rome, for the idea of “republican virtu” — personal self-restraint and direct participation in the governance and defense of the state; and London, for its concepts regarding the necessity of restraining monarchical power vis-à-vis the subject in the interest of preserving the public good of individual liberty. 2

Thus the Constitution is an extraordinarily “conservative document,” given its “roots in a much older tradition,” writes Stephen Tonsor. “Its world view is Roman or Anglo-Catholic; its political philosophy, Aristotelian and Thomist; its concerns, moral and ethical; its culture, that of Christian humanism.” 3

The “problem with the constitution” nowadays is that these ideas no longer inform the worldview of many Americans, in particular the “cultural elites” who sit on federal and state benches, who man the federal bureaucracies, staff the professoriate, and run the organs of public communications (i.e., the so-called “mainstream media”). All these constituencies, moreover, are effectively unaccountable to the people whom they purport to serve.

In light of breaking events — the recent ruling of a federal court in California that the Pledge of Allegiance is unconstitutional because of its “under God” language, the recent New London eminent-domain decision of the Supreme Court, and two Supreme Court vacancies (with possibly more to come within the tenure of the Bush presidency) — as well as long-standing public quarrels over the meanings of e.g., the Second, Tenth, and Fourteenth Amendments, we thought it would be useful to inaugurate a Freeper Research Project into theories of the Constitution, “then” and “now”; i.e., the original intent of the Framers vs. modern “prudential” and ideological constructions. In particular it would be useful to explore the roles of all the players in a constitutional system based on the separation and balance of powers, to see how well that concept is working nowadays.

Or not, as the case may be. And if that is the case, then to ask: Why not? What has “gone wrong” such that, e.g., federal judges routinely feel free to legislate their ideals of social progress from the bench?

I thought I’d get the ball rolling with a piece on the cultural component of such questions. I’m sure my thoughts may prove controversial to some of my Freeper friends; for I intend to show that the single most influential cause of current-day constitutional chaos is the breakdown of a common understanding of God and man and of their mutual relations. It is my view, however — the only view that I can relate, based on my observation, experience, and the indirect sources that further inform the present state of my knowledge — and anyone’s free to disagree with it. I just hope we can all be civil and respectful when/if we do disagree.

The point is, I can’t “do your seeing for you” anymore than you can “do my seeing for me.” Under the circumstances, it seems to me the best course would be to simply “compare notes” and see if we might learn something from one other.

My friend YHAOS writes: “The Founders bequeathed to their posterity rather a unique philosophy, not only of government, but of human relationships.” Indeed, YHAOS; the Framers’ view of human relationships was predicated on the understanding that “all men are created equal,” and thus all have dependence on a creator. Further, because they are equally the creations of one Creator, all men share a common humanity that effectively makes them “brothers.” All men are created with possessing reason and free will as a natural birthright, and are “endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” All men are equal before the law, while constituting the sovereign We the People — connoting one single community — who delegate a very few existential powers (29 by my last count) to the government, and retain all others unto themselves.

YHAOS continues, “It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.”4

Indeed, YHAOS. Those who would rule don’t much care for this sort of thing as a rule….

The “spirit of liberty” that informed the American Founding whereby the role of the state was to be severely delimited and constrained was brilliantly expressed by Trenchard & Gordon in Cato’s Letters (~1720):

All men are born free; Liberty is a Gift which they receive from God; nor can they alienate the same by Consent, though possibly they may forfeit it by crimes….

Liberty is the power which every man has over his own Actions, and the Right to enjoy the Fruit of his Labor, Art, and Industry, as far as by it he hurts not the Society, or any Member of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys.

The fruits of a Man’s honest Industry are the just rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is Sole Lord and Arbiter of his own Private Actions and Property5….

In short, in the early eighteenth century, there was a cultural consensus in England and in the Colonies that it is the God–Man relation from which the just relations of man with his fellow man flows that (not coincidentally) constitutes the limit or check on state power and authority. The Constitution itself epitomizes and expresses this consensus.

So it’s hardly surprising that, as YHAOS continues, “It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.”6

Indeed, YHAOS. Those who would rule don’t much care for this sort of thing as a rule…. And I am particularly intrigued by your notice of “the other elites.”

These “other elites” are informed by other notions that were altogether foreign at the time of the American Founding, and for more than a century thereafter. These notions are a specifically German cultural import — from Hegel, Nietzsche, Marx & Co., a going (and growing) concern since the mid-nineteenth century.

All three men were obsessed by power. Hegel’s model of the ideal state was Prussia, which was authoritarian and repressive. He worshipped Napoleon as a new World Savior. All three men wanted to “kill God.” This last, of course, is required for the free exercise of an unconstrained Will to Power: With God around, plans for constructing Utopia could never come to fruit. So they all decided He needed to be “bumped off” in order to clear the decks for a reconstruction of the world and human history, in order to perfect future history. Thus history as we know it must end.

And as it turns out, history under God becomes a dead letter with His demise. Then — and only then — can self-appointed Great Men assume the divine rule and enterprise with a free hand, “starting over from scratch,” as it were. Hegel and Marx both apparently believed that they could just start from nothing and, by the use of “pure” Reason, construct ever more perfect worlds, correcting all the imperfections that God left in His Creation, which is now to be happily Over, dispensed with. Men — or at least some men — have become “self-divinized.” A New World is a-borning.

We are speaking of the construction of progressivist utopias here.

Now the meaning of “Utopia” — a neologism of Thomas More — means “Nowhere.” Utopia is “a model of a perfect society that cannot be realized because an important sector of reality has been omitted from its construction, but its authors and addicts have suspended their consciousness that it is unrealizable because of the omission.”7 As the greatest English-speaking poet of the twentieth century put it:

They constantly try to escape From the darkness outside and within By dreaming of systems so perfect that no one Will need to be good….

But the man that is will shadow The man that pretends to be. 8

The “omitted sector” of reality is precisely the spiritual sector, constituted by the relations of God and man — the divine-human encounter that orders human souls, and from souls to societies, including political societies. That is to say, the total eclipse of the great Hierarchy of Being: God – Man – Society – World. It seems plain to me that “the murder of God” involves a double homicide, one a parricide, the other a suicide….

Clearly, there was a profound sea-change in the understanding of Reality and of human self-understanding between the time of Locke and the time of Hegel. Rather than present a lengthy and probably tiresome analysis of how this noxious diremption occurred, let me just give you a sampler of how meanings central to the human person and to political society are understood these days under the respective frameworks of the Judeo-Christian/classical (JCC) worldview, and the progressivist (P) worldview.

JCC says: “There is a nature of man, a definite structure of existence that puts limits on perfectability.”9

P replies: “The nature of man can be changed, either through historical evolution or through revolutionary action, so that a perfect realm of freedom can be established in history.”10

JCC says: “Philosophy is the endeavor to advance from opinion (doxa) about the order of man and society to science (episteme)…”11

P replies: “No science in such matters is possible, only opinion; everybody is entitled to his opinions; we have a pluralist society.” 12

JCC says: “Society is man written large.”

P replies: “Man is society written small.” 13

JCC says: “Man lives in erotic [faithfully loving] tension toward the divine ground of his existence.”

P replies: “He doesn’t; for I don’t; and I’m the measure of man.”14

JCC says: “Education is the art of periagoge, or turning around (Plato).” [Essentially, this means that education is the art of transmitting the greatest achievements of human intellect and culture to the next-rising generation, which, as we have already suggested above, include achievements of great antiquity. In the specific Platonic sense, this process requires a “turning to the Light” or alternatively, a “tuning into the God.”]

P replies: “Education is the art of adjusting people so solidly to the climate of opinion prevalent at the time that they do not feel any ‘desire to know.’ Education is the art of preventing people from acquiring the knowledge that would enable them to articulate the questions of existence. Education is the art of pressuring young people into a state of alienation that will result in either quiet despair or aggressive militancy.”15

JCC says: “Through the life of reason (bios theoretikos) man realizes his freedom.”

P replies: “Plato and Aristotle were fascists. The life of reason is a fascist enterprise.”16

JCC says: The process in which the nature of man and the other participants in the great Hierarchy of Being becomes conscious and noetically articulate and luminous to the human mind constitutes the life of reason.

P replies: “Reason is instrumental reason. There is no such thing as a noetic rationality of man.”17

Just in case the foregoing “dialog” comes across as a tad too “abstract,” let me give an example from concrete American historical experience that fully reflects the “tensions” inherent in such “irreconcilable differences,” and get off the soap box. (Then it will be someone else’s turn).

My example concerns the scope and meaning of the Second Amendment.

JCC says:

Surely one of the foundations of American political thought of the [Founding] period was the well-justified concern about political corruption and consequent governmental tyranny. Even the Federalists, fending off their opponents who accused them of foisting an oppressive new scheme upon the American people, were careful to acknowledge the risks of tyranny. James Madison, for example, speaks in Federalist Number Forty-Six of “the advantage of being armed, which the Americans possess over the people of almost every other nation.” The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty. It is therefore no surprise that the Federal Farmer, the nom de plume of an anti-federalist critic of the new Constitution and its absence of a Bill of Rights, could write that “to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them....” On this matter, at least, there was no cleavage between the pro-ratification Madison and his opponent.

In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the “importance” of the Second Amendment. He went on to describe the militia as “the natural defence of a free country” not only “against sudden foreign invasions” and “domestic insurrections,” with which one might well expect a Federalist to be concerned, but also against “domestic usurpations of power by rulers.” “The right of the citizens to keep and bear arms has justly been considered,” Story wrote, “as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

“…the repository of a monopoly of the legitimate means of violence [by the state] — that is so commonly used by political scientists … is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace.” 18

P replies (actually, this is Justice William Burger, who “never wrote a word abut the Second Amendment. Yet after retirement, he wrote an article for Parade magazine that is the only extended analysis by any Supreme Court Justice of why the Second Amendment does not guarantee and individual right”).19

“… the Second Amendment is obsolete because we “need” a large standing army, rather than a well-armed citizenry.”20 Plus we all know guns are dangerous things. Dangerous things should not be left in the hands of “innocent” (inept) civilians, especially when there are standing armies and organized police forces to whom we may safely delegate the use of force in our society.

To which JCC might retort: “Well, who’s policing the police? And what if the standing army comes after US?”

On that happy note, a few last words:

“Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master! “— George Washington

“All powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and … every power not granted remains with them, and at their will; and … no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President or any department, or officer of the United States.” — John C. Calhoun

“The power of kings and magistrates is nothing else, but what is derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power remains fundamentally, and cannot be taken from them without a violation of their natural birthright.” — John Milton

_________________________

Notes:

1 In Tennessee Law Review: Second Amendment Symposium, vol. 62, no. 3, 1995: 759, http://www.saf.org/LawReviews/Gifford1.htm .

2 Russell Kirk, The Roots of American Order, Washington, D.C.: Regnery Gateway, 1991.

3 Retrieved from a collection of aphorisms I’ve been compiling for many years. Unfortunately, at the time I found this one, I was not in the habit of recording the titles of works in which the aporism appears, e.g., in which Tonsor’s remark was given; and now do not remember it. (Mea culpa — So sorry!)

4 YHAOS at http://www.freerepublic.com/focus/f-news/1470264/posts?page=1150#1150

5 John Trenchard and Thomas Gordon, Cato’s Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects, Indianapolis: Liberty Fund, 1995 [1720]. Trenchard & Gordon were writing about 40 years after England’s Glorious Revolution of 1688, of which John Locke was major mentor and instigator. The Framers were well acquainted with the works of all three men, for Locke and Trenchard & Gordon were quintessential sources of the history of “revolution” in the British historical context; plus the philosophical/sociopolitical movements that they were describing were relatively recent from the Framers’ standpoint.

6 YHAOS op cit.

7 Eric Voegelin, “Wisdom and the Magic of the Extreme,” op. cit. The Collected Works of Eric Voegelin, p.316.

8 T. S. Eliot, Choruses from “The Rock,” as quoted by Voegelin, ibid.

9 Eric Voegelin, op. cit., p. 258

10 ibid.

11 ibid.

12 ibid.

13 ibid.

14 ibid.

15 ibid, p. 260 16 ibid.

17 ibid.

18 Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal. Originally published as 99 Yale L.J. 637–659 (1989).

19 David B. Kopel, “The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment,” 2000; http://www.i2iorg/SuptDocs/Crime/35.htm

20 ibid.



TOPICS: Editorial
KEYWORDS: aristotle; civilsociety; classicalphilosophy; constitution; creatorgod; culturewars; georgewashington; herbertwtitus; herbtitus; inalienablerights; johnlocke; judeochristianity; judicialphilosophy; originalintent; pc; plato; politicalcorrectness; reason; revisionism; staredecisis; titus; trenchardgordon; utopia; voegelin
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1 posted on 09/18/2005 9:30:24 PM PDT by betty boop
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To: Alamo-Girl

Dearest sister in Christ, I’m confident that we’ll need your indispensable and ever-gracious help as co-sponsor of this Freeper Research Project….


2 posted on 09/18/2005 9:31:09 PM PDT by betty boop (Nature loves to hide. -- Heraclitus)
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To: YHAOS; marron; Amos the Prophet; Jeff Head; joanie-f; xzins; Right Wing Professor; PatrickHenry; ...

FYI. Please join in if you have the time and interest. And if you do, please don’t hesitate to ping your friends….


3 posted on 09/18/2005 9:33:07 PM PDT by betty boop (Nature loves to hide. -- Heraclitus)
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To: betty boop

BUMP


4 posted on 09/18/2005 9:36:01 PM PDT by sourcery (Givernment: The way the average voter spells "government.")
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To: Malichi

Bookmark for tomorrow. Looks like a good one.


5 posted on 09/18/2005 9:37:05 PM PDT by Malichi (!)
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To: betty boop
I'm so glad to see this posted tonight - haven't had a chance to read it, but that's next and I'm very much looking forward to all the contributions!

It is my honor to help you in any way I can, my dear sister in Christ!!!

6 posted on 09/18/2005 9:37:18 PM PDT by Alamo-Girl
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To: betty boop

Very interesting! Good job! My thoughts:
http://www.neoperspectives.com/foundingoftheunitedstates.htm

Feel free to use any of the above in your final write up, please ping me when you finish!


7 posted on 09/18/2005 9:37:33 PM PDT by traviskicks (http://www.neoperspectives.com/janicerogersbrown.htm)
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To: traviskicks

btw, some other good quotes:



Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one; a few plain duties to be performed by a few servants.
Thomas Jefferson



If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
James Madison


The suppression of unnecessary offices, of useless establishments and expenses, enabled us to discontinue our internal taxes. ... The remaining revenue on the consumption of foreign articles, is paid cheerfully by those who can afford to add foreign luxuries to domestic comforts, being collected on our seaboards and frontiers only, and incorporated with the transactions of our mercantile citizens, it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer, ever sees a tax-gatherer of the United States?
- Thomas Jefferson (Second Inaugural Address, March 4, 1805)


8 posted on 09/18/2005 9:40:04 PM PDT by traviskicks (http://www.neoperspectives.com/janicerogersbrown.htm)
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To: betty boop

ping


9 posted on 09/18/2005 9:42:15 PM PDT by Louis Foxwell (THIS IS WAR AND I MEAN TO WIN IT.)
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To: betty boop
Thanks for the ping. This is an exciting subject, at least in my view, and I look forward to an exceptional learning opportunity. It's late, so I must be brief.

With respect to a historical subject such as this, IMHO we read too many books and not enough documents. Surely, our founding ancestors would be utterly amazed to learn of some of the things they said, thought, and did.

I haven't the link, but it's easy to google: type in Constitutional Society , click on Liberty Library , and start browsing. Warning: it's addictive, you may come to hate me.

Thanks, betty, for this opportunity.

10 posted on 09/18/2005 10:19:37 PM PDT by YHAOS
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To: betty boop
What has “gone wrong” such that, e.g., federal judges routinely feel free to legislate their ideals of social progress from the bench?

What has "gone wrong" is that there isn't any recourse for judges who are incompetent. In the real world your pay is based on your performance.

I keep hearing people squawk that judges should have a fixed term, say 10 years, so the incompetent ones can be pushed out. I have a better idea - base their pay, benefits, and retirement on their performance.

Take the Ninth Circuit Court of Appeals, for example. Three-quarters of all of their rulings are overturned. We should take away three-quarters of their pay, benefits, and retirement for the year they make the lousy rulings. That should give them plenty of incentive to make rulings based on the Constitution instead of their will.

11 posted on 09/18/2005 10:23:38 PM PDT by anonsquared
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To: betty boop; Bahbah; Dogrobber

This might interest you two.

*HUGS!*


12 posted on 09/18/2005 10:28:10 PM PDT by StarCMC (Old Sarge is my hero...doing it right in Iraq! Vaya con Dios, Sarge.)
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To: betty boop

Thank you for posting this most interesting thread!

I am interested in what has gone wrong with the First Amendment. How has freedom of religion- granted to us by our forefathers, including the rather secular Jefferson and Franklin- devolved into what seems to be becoming a godless society?
And how do we reclaim our society's values without ramming one particular set of values down people's throats with a gun barrel?

Does anyone have a source for the legend about the original draft of the Declaration of Independence reading ". . . life, liberty and property" instead of 'pursuit of happiness'?


13 posted on 09/18/2005 10:31:30 PM PDT by Ostlandr (Sic semper tyrannis)
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To: Ostlandr; Alamo-Girl
Does anyone have a source for the legend about the original draft of the Declaration of Independence reading ". . . life, liberty and property" instead of 'pursuit of happiness'?

Hi Ostlandr! I don't think that's a legend. The Framers — and especially Thomas Jefferson — were very heavy borrowers from John Locke who was the "father of the Glorious Revolution of 1688" as mentioned in the article at the top of this thread. Locke was a philosopher of the natural law/natural rights school. And he had seemingly concluded that inalienable rights can inhere in man only if they are endowed by a Higher Authority (so to speak). His three main inalienable rights were life, liberty, and property.

Now Thomas Jefferson was a close student of Locke. He knew everything that Locke had to say about natural law and the inalienable rights of persons. Although Locke's list survived verbatim through the first few drafts of the Declaration of Independence (co-authored by Franklin and Jay -- until those two worthy gentlemen realized that TJ was "on a tear," and so delicately withdrew into the background), Jefferson decided in the end (for whatever reason) to replace "property" with "the pursuit of happiness."

Personally, I am clueless why he would want to do that. "Property" is "concrete," tangible; and thus readily understandable by virtually everybody.

But "whut the hay" is "happiness?" You simply cannot quantify it. It might as well be a total illusion, or a chimera or unicorn flitting about. It means something different to every single human person in existence.

Truly I find Jefferson most perplexing on this point (and on some others as well). And so I gather: Not for nothing has he been called "The American Sphinx."

Thank you so much for writing, Ostlandr!

14 posted on 09/18/2005 10:57:05 PM PDT by betty boop (Nature loves to hide. -- Heraclitus)
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To: traviskicks

Thank you for those quotes.

My God, how far we have fallen.


15 posted on 09/18/2005 11:30:24 PM PDT by Ostlandr (Sic semper tyrannis)
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To: betty boop

Late bookmark and a bump for manana!


16 posted on 09/18/2005 11:38:21 PM PDT by Eastbound
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To: betty boop

bump


17 posted on 09/18/2005 11:44:38 PM PDT by tophat9000 (This bulletin just in:"Chinese's Fire Drill's" will now be known as "New Orleans' Hurricane Drill's")
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To: betty boop
...Property" is "concrete," tangible; and thus readily understandable by virtually everybody.

Ah,but is it? If the word "property" can be defined as a physical item, or items, with a verifiable market value that can be legally bought,sold, acquired, held in trust, or inherited then comes the question --- Are human beings property?

If so, then the original wording of the Declaration of Independence reading ". . . life, liberty and property" could very well have been interpreted as approving the "peculiar institution" of Slavery.

And, as we all know, Jefferson -- among many members of the Constitutional Convention -- was a slaveholder; albeit many were not, and some among them were firm abolitionists.

18 posted on 09/18/2005 11:48:47 PM PDT by yankeedame ("Oh, I can take it but I'd much rather dish it out.")
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To: anonsquared
HA! I've heard (and agree) that Congress-critters should have a $$$ figure in relation to what they voted to spend on. That way, come voting time, citizens can see the billions spent. Funny that Republicans claim to be fiscally conservative, but all the campaign literature show how much they have pillaged from the Treasury.
19 posted on 09/18/2005 11:49:22 PM PDT by endthematrix (JOHN ROBERTS vs JOE BIDEN ................... ROBERTS wins TKO in second round!)
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To: betty boop
"Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries º1890, p. 746 (1833)."

--Clarence Thomas, Justice, concurring, Printz v. U.S., 521 U.S. 898 (1997)

"Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right."

--Clarence Thomas, Justice, Printz v. U.S., Footnote 2.

20 posted on 09/19/2005 12:05:11 AM PDT by Ken H
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To: StarCMC

Thanks, Star. Most interesting. I shall return after a cup or two of coffee.


21 posted on 09/19/2005 2:48:57 AM PDT by Bahbah
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To: betty boop
.” 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

Right out of John Locke, but instead of happiness, he said property. His book was mentioned often in wills, to be given to the oldest son.

This country was founded by not the eldest son, but by the younger sons who had no prospects in their homeland except the military, the sea, as a merchant, or the clergy. All inheritance went to the oldest son and he was expected to support his mother, and spinster sisters. Most of the original 13 states set up inheritance as equal between heirs unless otherwise written.

As for church and state, the constitution says the state shall establish no religion, not that we are free from religion. In England, the King was head of the Church of England, and in France, the king was head of the Catholic Church after the Pope, etc. The founders did not want a state religion, but freedom for the citizens to choose a religion for themselves, their families, and their communities.

22 posted on 09/19/2005 3:10:24 AM PDT by Yellow Rose of Texas (WAR: 1/3 yes, 1/3 no, 1/3 undecided; So began the American Revolution)
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To: betty boop
Personally, I am clueless why he would want to do that. "Property" is "concrete," tangible; and thus readily understandable by virtually everybody.

He changed property to happiness as we had indentured servants, convicts, who could or could not own property depending on the state, and the great unwashed, uneducated tradesmen and day laborers.

Owning property was not a right, but a privilege that allowed you to vote in the general elections at all levels.

23 posted on 09/19/2005 3:21:09 AM PDT by Yellow Rose of Texas (WAR: 1/3 yes, 1/3 no, 1/3 undecided; So began the American Revolution)
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To: Yellow Rose of Texas

Sorry, Social Studies major showing.


24 posted on 09/19/2005 3:25:03 AM PDT by Yellow Rose of Texas (WAR: 1/3 yes, 1/3 no, 1/3 undecided; So began the American Revolution)
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To: betty boop
Thanks. It may not be relevant, but I posted a modest essay to start a vanity thread a couple of months ago about original intent:
Strict vs. Liberal Construction of the Constitution: A Bogus Issue. (No need to read that whole thread, as someone tried to hijack it to make it part of his personal war on sodomy.)
25 posted on 09/19/2005 3:25:44 AM PDT by PatrickHenry (Disclaimer -- this information may be legally false in Kansas.)
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To: betty boop

Bump. If we could only find some modern politicians with these thoughts...


26 posted on 09/19/2005 3:37:14 AM PDT by pageonetoo (You'll spot their posts soon enough!)
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To: anonsquared

Add if term limits for Judges -or performance based pay
are not agreeable-- might I suggest mandatory psych evals
by a panel of three competing psychologists to be affected
once any citizen notes variance with the clear language of the written Constitution.


27 posted on 09/19/2005 3:43:27 AM PDT by StonyBurk
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To: betty boop

A very well written piece-- ThankYou-- Might I add for the
discussion -- Donald S.Lutz "the Relative Influence of European Writers On Late Eighteenth Century American Political Thought"-American Political Science Review 189(1984) p189-197 Fairly well documented source of whom our
Founders cited in their political writings.
On Second Amendment I find many of the Law Review Articles
On Each Side-Presented as appendix to Guns Crime and Freedom,by Wayne LaPierre fairly weighs more on the side
of those who understand and agree with Joseph Story on the
Second Amendment.(I prefer Story on the Constitution-but
understand there are those who follow a different hermeneutic) And I do suggest "A Familiar Exposition on the
Constitution of the United States "by Jospeh Story,Regnery Gateway 1997 from the 1859 original as must read.


28 posted on 09/19/2005 3:58:03 AM PDT by StonyBurk
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To: betty boop

Thomas Jefferson,Writings,Merrill D.Peterson Editor,Library
of America 16th printing p19-25 records the Declaration of
Independence and how it was amended,John Eidsmoe in Christianity and the Constitution does a fair job discussing Jefferson and introducing his association with John Locke.IMO It remains an open question as to why Jefferson changed the concept presented by Locke-as I have
read in Lockes treatise on government the link Life -Liberty -and Property.--But find no original from Jefferson
beyond that which was approved and reported to Congress.


29 posted on 09/19/2005 4:38:05 AM PDT by StonyBurk
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To: yankeedame

and we also know that Jefferson was among those who disapproved of the slave trade -thus the memorialized excerpt from his Notes on the State of Virginia Query XVIII
"and can th eLiberties of a naiton be thought secure when we have removed their only firm basis,a conviciton in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?Indeed I tremble for my Country when I reflect that God is Just :that his justice cannot sleep forever... The spirit of the Master is abating,that of th eslave is rising.. . . "
Sadly I find racism more a problem of the North Than I ever saw it in the South.Tough your point on "property" is documented as it was defined respecting the slave trade.But it was a definition imported from the Brits.


30 posted on 09/19/2005 4:48:49 AM PDT by StonyBurk
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To: StonyBurk
and we also know that Jefferson was among those who disapproved of the slave trade...

Which then, of course, leads us to the hack-eyed observation that Jefferson freed only a tiny percentage of his own slaves.

Setting aside for one moment our 21st c. notion(s) on such a matter, Jefferson's actions - or lack thereof -- are a little more understandable if we make the clumsy analogy of a farmer preaching against our dependence on OPEC and yet not getting rid of every item on his farm that runs on petrol.

===============

-thus the memorialized excerpt from his Notes on the State of Virginia Query XVIII "and can th eLiberties of a naiton be thought secure when we have removed their only firm basis,a conviciton in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?Indeed I tremble for my Country when I reflect that God is Just :that his justice cannot sleep forever... The spirit of the Master is abating,that of th eslave is rising.. . . "

To what was Jefferson referring? A possible slave rising in America, or in the Americas? Remember about this time there were bloody slave rebellions in places like what is now Haiti, and in British West Indies.

====================

... "property" is documented as it was defined respecting the slave trade.But it was a definition imported from the Brits.

I'm not sure what you mean here.

31 posted on 09/19/2005 6:01:11 AM PDT by yankeedame ("Oh, I can take it but I'd much rather dish it out.")
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To: yankeedame
...the original wording of the Declaration of Independence reading ". . . life, liberty and property" could very well have been interpreted as approving the "peculiar institution" of Slavery.

Good point, yankeedame.

32 posted on 09/19/2005 6:06:32 AM PDT by betty boop (Nature loves to hide. -- Heraclitus)
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To: betty boop; Ostlandr
What an excellent essay, betty boop! And what a great Freeper Investigation this shall be!!!

I read the article last night and was just fixing to post some research sources for the correspondents – when, poof, we lost electricity. There’ll be thunderstorms in the area today, too – so it may be touch-and-go for me. LOL!

Anyway, here is an exhaustive list of links to the various documents which were significant to the framers from 500 B.C. to 1800 A.D. – with a few of the ones previously discussed highlighted:

Primary Source Documents

Institutes of Christian Religion - John Calvin (1540). Calvin's magnum opus.

The most celebrated American historian, George Bancroft, called Calvin "the father of America," and added: "He who will not honor the memory and respect the influence of Calvin knows but little of the origin of American liberty." To John Calvin and the Genevan theologians, President John Adams credited a great deal of the impetus for religious liberty (Adams, WORKS, VI:313). This document includes a justification for rebellion to tyrants by subordinate government officials; this particular justification was at the root of the Dutch, English, and American Revolutions.

Constitution of the Iroquois Nations

The Virginia Declaration of Rights (Mason, 1776)

The property reference appears in the Virginia Declaration of Rights also.

33 posted on 09/19/2005 7:08:22 AM PDT by Alamo-Girl
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To: betty boop
You wrote:


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.







Professor Randy Barnett argues that " --- since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost."




After usefully pointing out that, for the most part, the Constitution "purports to bind government officials, not private individuals," Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?

In other words, is one morally obligated to obey any law that is enacted according to constitutional procedures?

Barnett does not leave his readers long in suspense: his answer is that, under constitutional conditions, people are indeed obligated to obey the law.
So long as the government enacts laws that are "both necessary to protect the rights of others and proper insofar as they do not violate the rights of the persons whose freedom they restrict," people have a duty to obey constitutional laws.

Imho, they also have an equal duty to fight against unconstitutional law - and those who advocate them.







Restoring the Lost Constitution: The Presumption of Liberty
... - Google Print
Address:http://print.google.com/print?id=QWY04NYjvCUC
34 posted on 09/19/2005 7:10:43 AM PDT by trawler
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To: yankeedame

Property -as you have noted-- was defined at that time to
include the African slave. (as seen in both the US constitution--and latter in the Constitution of the Southern
States [which was based upon the US Constitution] But the slave trade itself was an importation from the British
Crown AND seems an affect of the complex relationship between the West and the contacts with the Islamic States.
The African slave trade was promoted as much by Islam-as
it was by any other group. And Islam remains the only group I am aware of that continues to practice such. IT was
in England and at about the same time in America that the
trade began to lose favor. (much to influence of Whitefield
in the Colonies and Wilburforce in England.)


35 posted on 09/19/2005 7:28:07 AM PDT by StonyBurk
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To: trawler
After usefully pointing out that, for the most part, the Constitution "purports to bind government officials, not private individuals,"...

I question this claim by Dr. Barnett -- that the Constitution binds "government officials, not private individuals". The USC is the highest law of the land. Period. It binds,and covers with its sheltering wings, every citizen of this country. The fact that mistakes have been, and will be, made -- indeed, some of them grievous -- in its name is not the fault of the document. The fault lies in unconquerable arrogance, political sensitivity, and all the other frailties that we humans are heir to.

==============

Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?

No, sir, with all due respect I disagree. The fundamental question re: the Constitution is:

Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States?

As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.

36 posted on 09/19/2005 8:11:55 AM PDT by yankeedame ("Oh, I can take it but I'd much rather dish it out.")
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To: betty boop

More research by Barnett into theories of the Constitution, "then" and "now"; i.e., the original intent of the Framers vs. modern "prudential" and ideological constructions:





FUNDAMENTAL-RIGHTS JURISPRUDENCE & THE NEW DEAL


At the end of the 19th century, as the so-called "Progressive" movement grew, legislation was passed at the state level regulating and restricting economic activity.
At the same time, morals legislation became much more pervasive, though often falling under the rubric of "public health" — what historian Ronald Hamowy has called the "medicalization of sin."
All this was part of an intellectual and political movement to improve upon the result of personal and economic choices by aggressively using government power to improve the general welfare.


Around the turn of the 20th century, the Supreme Court sporadically resisted this movement, striking down some (but far from all) laws restricting economic activities, and also state laws that, for example, prohibited private Catholic schools.
The Court was sharply criticized by Progressives at the time for being "activist" and political, though even some constitutional historians on the left today, such as Howard Gillman, acknowledge the continuity between the principles of the Founding and what the Progressive-era Supreme Court was trying to do in circumscribing state power.

With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.)
Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous "Footnote Four" was satisfied.
Heightened scrutiny would be given to a statute that
(a) "appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,"
(b) interfered with the political process, or
(c) messed with a discrete and insular minority.
This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press.
(The fact that the right to bear arms — explicitly mentioned in the Second Amendment — has not been judicially protected, shows the ideological nature of this maneuver.)

Ironically, no one has been more stalwart in allegiance to the Roosevelt-New Deal judicial philosophy of Footnote Four than today's judicial conservatives, such as Robert Bork.

Randy Barnett


37 posted on 09/19/2005 8:12:05 AM PDT by trawler
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To: trawler
At the same time, morals legislation became much more pervasive, though often falling under the rubric of "public health" — what historian Ronald Hamowy has called the "medicalization of sin."

Nice phrase.

38 posted on 09/19/2005 8:15:38 AM PDT by Doctor Stochastic (Vegetabilisch = chaotisch ist der Charakter der Modernen. - Friedrich Schlegel)
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To: yankeedame
Barnett usefully pointed out that, for the most part, the Constitution "purports to bind government officials, not private individuals,"...

I question this claim by Dr. Barnett -- that the Constitution binds "government officials, not private individuals".
The USC is the highest law of the land. Period. It binds, and covers with its sheltering wings, every citizen of this country.

I doubt that Barnett would disagree. I sure don't.

The fact that mistakes have been, and will be, made -- indeed, some of them grievous -- in its name is not the fault of the document. The fault lies in unconquerable arrogance, political sensitivity, and all the other frailties that we humans are heir to.

Again, I'd bet that Barnett would agree.

Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name.
Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?"

No, sir, with all due respect I disagree. The fundamental question re: the Constitution is:
Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States?

Having read quite a bit of Barnetts writings, it's clear to me he would say for the 'whole people'. Why would you disagree?

As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.

Not at all, imo.. Constitutional laws bind all of us in conscience because, in effect, we as citizens have sworn to support & defend our Constitution. As you said, it's the "highest law of the land".

39 posted on 09/19/2005 8:39:40 AM PDT by trawler
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To: Doctor Stochastic
"morals legislation became much more pervasive, though often falling under the rubric of "public health" — what historian Ronald Hamowy has called the "medicalization of sin."


Nice phrase.






Must come from this essay, but I can't get a legible html copy:




MEDICINE AND THE CRIMINATION OF SIN: "SELF-ABUSE" IN 19th CENTURY AMERICA* - -
Address:http://66.102.7.104/search?q=cache:G2oSoyU1RXMJ:www.mises.org/journals/jls/1_3/1_3_8.pdf++Ronald+Hamowy+sin&hl=en&ie=UTF-8
40 posted on 09/19/2005 9:08:24 AM PDT by trawler
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To: All

Bumping for contributions to this Freeper Investigation!


41 posted on 09/19/2005 9:17:01 AM PDT by Alamo-Girl
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To: Apple Blossom

ping


42 posted on 09/19/2005 9:19:33 AM PDT by bmwcyle (We broke Pink's Code and found a terrorist message)
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To: trawler
The phrase occurs in:

National Review

Erotica Bibliophile

The Seventh Age

Amy Welborn

Seems to be a popular phrase whether one is for or against either medicalization or sin.

43 posted on 09/19/2005 9:52:46 AM PDT by Doctor Stochastic (Vegetabilisch = chaotisch ist der Charakter der Modernen. - Friedrich Schlegel)
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To: betty boop; All

Bump for more contributions!


44 posted on 09/19/2005 9:53:54 AM PDT by Alamo-Girl
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To: betty boop

Marker Bump!


45 posted on 09/19/2005 9:59:08 AM PDT by Bigun (IRS sucks @getridof it.com)
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To: Yellow Rose of Texas
As for church and state, the constitution says the state shall establish no religion, not that we are free from religion.

Excellent distinction. The plethora of religious phrases and appeals to God in the founding documents as well as the myriad embellishments on and around government buildings is proof that we are not officially free from religion.

A tougher reading of the establishment clause speaks specifically to prohibiting the creation by the government of a corporate institution of religion.

The Iraqi proposed constitution differs from this only narrowly. While it makes appeals to the cultural heritage of Iraq as Muslim it does not establish an official Muslim institution in the government. The Iranian government, on the other hand, does just this. One is a democracy. The other is an oligarchy.

The interpretation of the establishment clause by recent jurisprudence ignores the founding documents and replaces them with a government scrubbed antisceptically clean of religion. It is nearly imnpossible to avoid the conclusion expressed by betty boop that contemporary government is actively pursuing a campaign to rid the culture of any vestige of public religious expression. This leads inexorably to betty's discussion of utopian government, especially as it distinguishes between government and society.

I was struck in the 90's by the continued interchangable use of the words government and society by the Clintons. They, and especially the Jr. Senator from NY, continue to this day to merge the two. She uses the words government and society interchangably. They are, in her lexicon, one entity. Clearly, then, for Hillary and her ideological cohorts, the establishment clause must, finally, rid society of the infection of religion.

These are not distinctions with no important differences. If government is society then all personal behavior is governable by law.

We are at a crossroads. Many would agree that we have gone far down the road of government intrusion into all aspects of life. When the only concern on the political left is the right of privacy as it pertains to the taking of neonatal life, we do not have far to go toward ending all vestiges of morality.

Jerry Springer, arguably the most vivid torch carrier of the political left, argues consistently that civil matters must be discussed apart from religious influence. He strikes at the heart of the matter.

46 posted on 09/19/2005 10:23:49 AM PDT by Louis Foxwell (THIS IS WAR AND I MEAN TO WIN IT.)
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To: anonsquared
What has "gone wrong" is that there isn't any recourse for judges who are incompetent.

I would beg to differ. There IS Constitutional recourse but, up to now, no congress has displayed the fortitude to use it!

47 posted on 09/19/2005 10:24:57 AM PDT by Bigun (IRS sucks @getridof it.com)
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To: trawler
Having read quite a bit of Barnetts writings, it's clear to me he would say for the 'whole people'. Why would you disagree?

Oh no, I do not disagree with you, or Dr. Barlett. I merely brought up this up b/c for a good many years -- for a good many decades... after the USC was enacted this question was a sticking point to lawmakers, judges, legal scholars, etc. on both the state and national level.

Correct me if I'm wrong, but I believe this question was first addressed in 1819 or so w/ the Cohens v. Virginia case with CJ John Marshall citing as proof the opening lines of the USC which reads: "We, the people....", not "We, the states..."

But of course lawyers were no different then than they are now -- if they get kicked out the door, they'll try climbing though the window.

48 posted on 09/19/2005 11:17:11 AM PDT by yankeedame ("Oh, I can take it but I'd much rather dish it out.")
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To: Amos the Prophet
A tougher reading of the establishment clause speaks specifically to prohibiting the creation by the government of a corporate institution of religion.

Interesting choice of words, as many people do not know that until the Industrial Revolution was firmly in place, (latter first quarter of the 19th century,) the word "corporation" do not refer to business and commerce but to institutions, i.e. Harvard, Dartmouth and what we today would refer to as charities (Red Cross, ASPCA, etc.)various societies (Elks, Women's Temperance League, etc.)

Business/commerce did not so much hi-jack the word "corporation" as it just sort of slipped into it on little cat's-feet.

49 posted on 09/19/2005 11:34:28 AM PDT by yankeedame ("Oh, I can take it but I'd much rather dish it out.")
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To: yankeedame
Barnett poses this fundamental question: "The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name.
Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?"

No, sir, with all due respect I disagree. The fundamental question re: the Constitution is: Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States? As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.

Having read quite a bit of Barnetts writings, it's clear to me he would say for the 'whole people'.

Constitutional laws bind all of us in conscience because, in effect, we as citizens have sworn to support & defend our Constitution. As you said, it's the "highest law of the land".

Oh no, I do not disagree with you, or Dr. Barlett. I merely brought up this up b/c for a good many years -- for a good many decades... after the USC was enacted this question was a sticking point to lawmakers, judges, legal scholars, etc. on both the state and national level.
Correct me if I'm wrong, but I believe this question was first addressed in 1819 or so w/ the Cohens v. Virginia case with CJ John Marshall citing as proof the opening lines of the USC which reads: "We, the people....", not "We, the states..."

You are correct, of course. The 'states rightists' have more or less abandoned that particular aspect of their overall argument that states can ignore the Bill of Rights, -- but they still ignore them, using any means possible to give laws that violate individual rights the color of law.

But of course lawyers were no different then than they are now -- if they get kicked out the door, they'll try climbing though the window.

Lawyers, politicians, whatever, - statists of any stripe have one common goal, gaining the power to control people; its been called the socialist's disease.

50 posted on 09/19/2005 12:17:29 PM PDT by trawler
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