Posted on 09/18/2005 9:30:23 PM PDT by betty boop
Thanks, Star. Most interesting. I shall return after a cup or two of coffee.
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.
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.
Sorry, Social Studies major showing.
Bump. If we could only find some modern politicians with these thoughts...
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.
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.
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.
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.
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.
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-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.
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... "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.
Good point, yankeedame.
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:
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)
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.)
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.
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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.
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
Nice phrase.
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".
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