Posted on 09/11/2008 10:57:32 PM PDT by joanie-f
Jeepers I hope I didn't come across as "smart-alecky" there! It's just I've been doing a whole lot of thinking lately about who "the people" are in our system of government. (They are mentioned not only in Preamble, but also in the Tenth, and by implication in the Ninth Amendment as well — the latter of which hardly anybody talks about these days, or seemingly even understands). Just some thoughts FWIW.
When students are educated in our system of government (assuming they are so lucky these days), they are told that it is fundamentally a system that separates and balances power. The example always given is the separation of the federal power into the congressional, executive, and judicial branches, each of which is anticipated to be seeking power at the expense of the others, and thus needs to be checked by the institutional prerogatives and jealousies of the other two branches. And out of this struggle of the separate branches for preeminent power a livable political modus vivandi issues forth to the benefit of a free people.
But it seems to me there is an even more fundamental separation of powers subsisting in our national law: the federal establishment, the several states, and the sovereign people.
It is the people which is ultimately "sovereign" under our system of constitutional law. In the first place, it was "WE the People" who "ordained and established" the Constitution of the United States, for the benefit of themselves and their "Posterity." It was the People who granted the powers of the federal government TO the government in the first place. And there were very few grants (27 by my count.)
The other way in which the people are sovereign is that the legitimacy of our rule of law depends on the consent of the governed. That is, the consent of the people....
Plus there are a couple of instances that come to mind where the people get to express their "sovereign" will in ways in which no government, federal, state, or local can challenge, modify, or override in any way. For instance, the exercise of the franchise, and jury duty.
Juries can even set aside law in particular cases; and if they do so, there is no officer of the court in the land that has standing to override their verdict.
I have always found the idea of jury nullification quite fascinating. The point is, the government may indict and bring forth cases at criminal or civil law all day long. But only a jury of one's peers can convict one of a crime. And if a jury doesn't want to convict somebody of a crime that has been charged against him by federal or state authorities, then the defendant walks. A jury verdict is ultimate — there is no agency of government that can challenge, let alone set aside, any verdict of a duly-constituted jury.
Some people say this is a deplorable situation, and point to, say, the famous O.J. case of jury nullification as a failure of American justice. But I would say the American jury system is the sovereign safeguard of the liberty of the American people. For the government may charge crimes against whomsoever it will; but only a jury of our neighbors can convict of the crime, and thus legitimate the penalty that the government wants to impose.
Anyhoot, what the Framers of the federal Constitution eminently realized was that their design, their project for a novus ordo seclorum — a new order of Liberty designed for the ages — absolutely depended on citizen virtue for its realization and sustenance over time. If the people are morally compromised, this result cannot happen.
And hosepipe put that very issue in its precise ramifications for total American well-being at his recent Post 340.
What we Americans most desperately need right now, it seems to me, is a renewed sense of what constitutes basic public morality — i.e., civic virtue.
My dearest sister in Christ, recently you cited the great Greek philosopher Heraclitus on contemporary questions, i.e., that he saw (as later did the great German philosopher-mathematician Liebnitz) that all of existence depends on two things: (1) that which does not change; and (2) that which is capable of changing. The direct analogue here, as you point out, is the first and second laws of thermodynamics and how they synergistically play out in Reality.
Heraclitus had yet another great insight, one which by analogy bears on our present problem. He said there are only two types of men: (1) the public man; and (2) the private man.
The Framers were all public men, designing their constitutional construct for public men, or men of "virtue," for the ages.
The virtue of the public man consists in the fact that he recognizes that there is only one Logos, "which suffices for all things, and more than suffices." The "private men" are those who "turn aside as if asleep, into their own private dream worlds."
And so if anyone is wondering what the Logos is, just try a little thought experiment: Consider Heraclitus' public man — the man of virtue who lives beyond himself for the benefit of the wider community of men — and his private man, the man who is given over to his own dreamlike personal wishes, hopes, and desires as abstracted from the well-being of anything beyond his own personal preferences and narrow idea of personal welfare, which is finally and fatally abstracted from the requirements of the universal human condition.
Then maybe you'll see what the sheer lack of moral consensus — of the shared sense of a common Logos — is perpetrating in American sociopolitical life nowadays. If this trend is not resisted, it will issue in the doom of the novus ordo seclorum, and of its LONE sponsor: the United States of America.
We do indeed live in interesting times!
Thank you ever so much for your splendid essay/posts, dearest sister in Christ!
They are currently called liberals and conservatives.. but a rose is a rose by any name.. I believe the same is true in any culture, dialect, or language.. Also spoken by the meme of, first reality, and second reality.. Could be any culture has these realitys at any time its just the words used for the public and private man is changed..
I submit that there may be other words to express this dicotamy concurrently used harboring different aspects of the divide.. like at the same time some may be, democrats vs republicans, liberal vs conservative, evolutionists vs creationists, capitalist vs socialist, or even more dualities that I cannot grasp as I write this..
And that even the most remote tribe will have these dualities working in the culture..
Consider it a high compliment that I believe this piece puts you in that tiny and rarified group of FR thinkers/writers that includes my Dear Sisters, betty boop and Alamo-Girl.
Believe me, I will be watching our for your essay-posts from now on -- because you absolutely nailed this one!
With sincere respect,
TXnMA
Oh...and, BB, thanks for the ping!
Please remove me from the “ping list” on THIS thread.
I have stated my opinon and wish to leave it at that.
Thabk you!
Joanie’s the “real thing,” TXnMA! I love to read her too!
I agree—as do other nations.
I haven't felt so profoundly complimented in recent memory. What an honor to share such sterling company!
Sincere thanks, TXnMA.
~ joanie
I submit the "classical way" — from Heraclitus to Plato and Aristotle — to look at this problem involves the discrimination of First and Second realities. The "public man" lives in First Reality; the "private man" has turned aside from First Reality, opting for some "more pleasant" dream world of a Second Reality.
Perhaps the most famous example of a "private man" dreaming a Second Reality is Karl Marx....
For a Second Reality to gain strength is toxic to a free and just society.
And thank you, dear brother in Christ, for all of your encouragements!
I very strongly agree with your assessment of jury nullification. The jury has the power to nullify law - though often the jurors do not realize it. It must be quite an affront to the courts, i.e. I suspect that simply mentioning the phrase "jury nullification" during selection is enough to be sent home. LOL!
And there's the Second Amendment - the right to keep and bear arms as an individual right. As long as that right is upheld, a "Hitler" cannot prevail here. Some have called it the "reset button" to the Constitution. I believe there are many who fear that element, but I also believe those fears are unwarranted - our society does not have large enough areas of isolation to support another civil war. If the Constitution ever needs to be reset, it'll be because a "Hitler" type came to power.
Then maybe you'll see what the sheer lack of moral consensus — of the shared sense of a common Logos — is perpetrating in American sociopolitical life nowadays. If this trend is not resisted, it will issue in the doom of the novus ordo seclorum, and of its LONE sponsor: the United States of America.
Many people have become disturbingly self-serving, i.e. the "me" generation "looking out for #1," "I'm ok, you're ok," "if it feels good, do it," etc.
Scriptures speak of this trend:
For men shall be lovers of their own selves, covetous, boasters, proud, blasphemers, disobedient to parents, unthankful, unholy, Without natural affection, trucebreakers, false accusers, incontinent, fierce, despisers of those that are good, Traitors, heady, highminded, lovers of pleasures more than lovers of God; Having a form of godliness, but denying the power thereof: from such turn away. - 2 Timothy 3:1-5
Maranatha, Jesus!!!
Attributes to be careful of in ourselves and our friends and family..
Can any good come from purveyors of these qualia..
In what sense did the federal government "allow" states to legalize abortion? It seems to me the federal government "forced" the states to legalize abortion.
Prior to Roe v. Wade, IIRC, abortion was illegal in the state of New York and in most of the other states as well. Roe v. Wade overturned all state laws that penalized abortion. It was the federal government, via SCOTUS, that made abortion legal — in states that had formerly prohibited it.
The point is the states had the better judgment of this issue than the SCOTUS did. But all state objections to the abominable practice of abortion were silenced by Roe v. Wade. The justices supplanted their own "wisdom" for that of the people of the several states acting through their state legislatures, and gave it the effect of a universal law. The states are helpless to do anything about it.
Roe v. Wade was an act of judicial tyranny pure and simple, a usurpation of power that diminishes the natural rights of the people now living — not to mention their posterity.
At least, that's how I assess this issue, FWIW.
Honestly roamer_1, I really don't see that you and I fundamentally disagree WRT the abortion issue. But then, maybe I'm still missing something. In any case, it's a delight to converse with you. You're a fine, eloquent writer!
Thank you so much for your excellent essay/post!
First of all, dearest sister in Christ, thank you from my heart for the passages from 2 Timothy 3:1-5. Nothing could be more apt to what we're discussing here....
WRT the above italics: Oh, you are so right that the very idea of jury nullification gives judges the "heebie-jeebies!" LOLOL! I infer this from my experience as a prospective juror in federal district court (a Massachusetts district).
I got called to service, and accordingly showed up at the appointed time (7:30 a.m.). I was put into a room called the "jury pool." There were a whole bunch of us milling around, but eventually we all settled down at tables and chairs and opened our books, etc., to while away the time.
Two things happened next. First, we were shown a film designed to guide us into a proper understanding of our responsibilities as jurors. The basic theme boiled down to: You are bound to render your verdict solely on the basis of the guidance and instructions of the trial judge. Especially, you must rely on his interpretation of the law; and if he says that the law applies to the defendant, then you must cast your verdict in such a way as to apply the law as the judge instructs you to do.
Well, I was just flabbergasted! For I know (being a lifelong student of the Constitution) that the central tenet of the jury system is that jurors are sovereign; that is, wholly free to interpret law according to their own best lights, as an act of conscience. And then to determine whether or not the law should apply to a particular defendant in a particular case. Juries can hold the law of "no effect" WRT that particular defendant. That doesn't mean that the law changes instantly. It just means that the jury refuses to apply it in the case at hand. This is the juror's RIGHT — of free conscience. And as mentioned before, that right, and that verdict, cannot be questioned, or overturned, by ANYONE.
Natch I would never spill the fact that I understand what jury nullification is if I ever wanted to be empanelled as a juror.... But if I wanted to ditch jury duty, the most expeditious way to do that would be to suggest that my understanding of the role of the juror is the "classical, constitutional one." Today, anyone saying such a thing would get dismissed for sure, I guarantee it. :^)
But then stay tuned for part (2): The presiding judge of the court that our jury pool presumably would be serving that day came out to address us.
He said in effect: "Not to worry people, you'll be out of here early today because we are going with a plea-bargaining strategy for today's docket, so you'll probably not be called as jurors. The whole point of your being here today is as leverage over defendants to plea bargain their cases. If they don't do that, then we threaten them with a jury. Oftentimes, that's all we need to do to get them to settle. Hey, it saves on court time and expense."
At this point, I was sickened, totally disgusted.... Every American is entitled to a full and fair jury trial. And this court has twisted, reduced this right to nothing more than an expeditious route for obtaining a guilty plea....
Anyhoot, sure enuf the judge was right; and the entire jury pool was dismissed at 12:30 p.m. Evidently this judge's court got all their plea-bargaining business done that day....
Sigh....
I agree with you here: "If the Constitution ever needs to be reset, it'll be because a "Hitler" type came to power." Maybe this is the role that the Obamessiah has been chosen to fill in the upcoming festivities....
It's a very good thing I can't foretell the future. I wouldn't be able to sleep at night! LOL!!!
Meanwhile, let us pray for God's blessings on America, for a spiritual awakening, a moral regeneration....
All glory be to God, my dearest sister in Him!
RE: the film we prospective jurors were shown, I neglected to cite the final, very explicit "moral of the story" of the jury instructions given to us: "Your job as jurors is not to interpret the law; your job is only to apply the law (as the judge explains it to you)."
This is NOT the "classical, constitutional understanding" of the role of the juror in our society.
I was rejected once from a jury because I told the judge and both attoneys that I could care less what instuments the judge and both attorneys tried to tamper with mind.. I would make up my own mind as to guilt or innocence...
Actually I embellished my screed until they stopped me.. I was rejected.. Watching them accept mushroom people and reject thinking people really urinated me off.. LoL...
The best line in the movie, Devil's Advocate, was delivered by Al Pacino playing the devil at the very end when he said "Vanity is definitely my favorite sin." The line is underscored by one he repeats throughout the movie, i.e. that they never see him coming.
Vanity is subtle. "Hey, what about me?" is perfectly acceptable to modern man's thoughts about the way things ought to be. But that is not God's way:
I remember that in the movie and thought that probably ENVY was the devils favorite sin.. Envy is what drives all liberals, and drives all leftists is at the base of most evil on this planet.. The love of money generates envy..
The evil of envy is under rated.. I think..
Coveting your neigbors stuff lies at the heart of many evils..
It is amazing that jurors are intimidated into thinking a particular way when the bottom line is that their thoughts are known only to themselves and their decisions, however made, stand.
Intimidation towards plea bargaining didn't surprise me at all - criminal justice in particular is almost a machine. Indeed, I suspect many prosecutors throw every charge they can into the indictment so they will have the upper hand in plea bargaining.
The old saying in Texas is that a grand jury would indict a ham sandwich. An attorney once explained that if the grand jury asked too many questions of the prosecutors, they'd keep them locked up - forcing them to order in ham sandwiches or whatever until they finally agreed to rubber stamp their charges. LOLOL!
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