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Should Our Law Depend On Our Founders' Intentions Or Judge's Morals?
The Bulletin ^ | March 26, 2009 | Herb Denenberg

Posted on 03/26/2009 1:12:06 PM PDT by jazusamo

I never imagined I’d be writing this line — tyranny is on the march in the U.S. When you have the exploding expansion of government and an accompanying growth of regulation and taxation, you are sounding the death knell of American liberty and going down the road to tyranny for two reasons:

• First, as government expands, liberty contracts. History demonstrates as government expands, it squeezes out private enterprise and free markets. That spells the beginning of the end of our capitalist system and the rise of a government-dominated economy and society. When that starts happening, with the leadership that we have now that views government as the answer, you know what’s on the way. You are almost certain to find government metastasizing in an endless cycle of expansion that gradually crowds out and kills free markets, free enterprise and the private sector.

• Second, when budgets, deficits and national debt expands without restraint, and when suddenly fiscal matters are described in terms of trillions rather than billions, you have a trajectory that is unsustainable. According to Barack Obama’s spending path, the interest on the national debt by 2019 alone will be $806 billion — more than what will be spent on national defense. Our national debt is on a path to reach $10 trillion, an unsustainable amount.

With that kind of crippling debt and deficits, we will not be able to sustain a vibrant, productive economy that can support the military establishment we need in a dangerous world. The government-controlled and -centered economy will not be able to support a military establishment. In fact, we will not be able to sustain the standard of living we now enjoy. Remember the Obama administration is using fear tactics to justify government expansion and spending unprecedented in our history. On top of that, the Obama administration seems to botch every government program it has tried to manage, so the expanding government will deliver a double whammy to America’s strength. Governments, like corporations and people, eventually encounter disaster when they spend way beyond their means. Sen. Judd Gregg, R-N.H., points out that Mr. Obama is spending more than our previous presidents put together.

There are other developments that also raise the specter of tyranny. Consider the bus trips to bring demonstrators to the homes of AIG executives who received bonuses. The bus trips have been arranged by ACORN, the group that has a long history with Mr. Obama. It was one of his first employers and it also worked with his campaign. It was also a beneficiary of the stimulus bill. It is known for voter fraud and intimidation of banks and lending institutions to make them lend money to low-income people, part of the scenario that led to our financial meltdown.

The bus trips to homes of AIG executives seems to be part of an intimidation approach taken by ACORN in other contexts. It is mob rule, but of the worst kind, as it is fired up and encouraged by those in government. These kind of tactics have been encouraged by President Obama and others who have whipped the public into hysteria over the AIG bonus payments. This is outrageous as the Obama administration was not only long aware of the AIG bonuses, but also actually legalized and sanctioned those bonuses by the stimulus package, which was proposed by the Obama administration and backed in every way by the Obama administration.

There has also been a burst of power grabs by the Obama administration. It wants the authority to seize financial institutions (other than banks) and sell off their assets, rewrite their contracts and take other interventions. Some legal experts have already said this would be an unconstitutional power-grab. Critics also say it is bad economic policy. The Democrats are also talking about regulating the pay of financial executives, even those who don’t take bailouts.

This is just a small sample of the Obama administration’s gyrations that hit me with special force as I read Mark R. Levin’s new book, Liberty and Tyranny: A Conservative Manifesto. I just reviewed this book in my last column, but decided to go back to it in this column, as it is powerful in the case it makes, but is also prophetic as to what has been going on since it was written.

Mr. Levin’s book is a classic statement of conservative values, but also a classic statement of what has to be done to reverse the Obama march to tyranny. Mr. Levin is a host of one of the leading conservative talk shows and is also a constitutional lawyer and president of the Landmark Legal Foundation. He is a Philadelphian, who graduated from Temple University and its law school.

One of the most important chapters in the book is on the Constitution, which of course is at the heart of most of our debates about the role of government. Mr. Levin makes an ironclad case in favor of the originalist approach to Constitutional interpretation, which holds the Constitution should be interpreted in accordance with the original intent of the Founders. That is the conservative approach.

The Democratic and liberal approach rejects the originalist position and calls for viewing the Constitution as a living and breathing document, which should be interpreted with the lens of today’s conditions and values. The two views of interpretation produce results that can be poles apart.

Mr. Levin explains the two approaches in terms that everyone can understand, one of the special strengths of his writing:

“Language consists of words, words have ordinary and common meanings, and those meanings are communicated to others through the written and spoken word. When parties enter into voluntary arrangements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform, and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original meaning.

“The Conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that have the same meaning today as they did yesterday, and should tomorrow.”

The “living and breathing” of the Constitution calls for the use of the amendment process, not the willy-nilly pronouncements of judges anxious to implement their own agendas.

This originalist approach connects one generation to the next and restrains government from societal experimentation and government excesses. It is the only way to interpret the Constitution if it is to deliver the kind of stability and certainty of protection, which was at the heart of its very purpose.

Mr. Levin argues that the liberal/Democratic Party view of the Constitutional interpretation is ridiculous:

“If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.”

One of the reasons that Mr. Levin’s argument for originalism is so powerful is that it is based on the views of the Founders. On this, he quotes James Madison, the “father” of the Constitution:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

He not only devastates the anti-originalists with his arguments and those of the Founders, but even more persuasively, he destroys their position with their own words. For example, when the late Associate Supreme Court Justice Thurgood Marshall was asked what his judicial philosophy was, he responded, “You do what you think is right and let the law catch up.”

When the late Associate Justice Arthur Goldberg was asked for his approach, he responded that he determines “what is the just result.” In other words the anti-originalists decide cases by throwing out the Constitution and doing what they think is “right” or “just.” Despite its noble sound, it is correctly described by Mr. Levin as a “license to arbitrary and lawless activism.”

The argument of the originalist can be carried to a second level: If the words and meaning of the Constitution can be manipulated by the anti-originalist, or what Mr. Levin calls the statists, how can their words and meanings be expected to deliver stability or demand respect?

As Mr. Levin puts it, “Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is ‘right’ or ‘just’ bind the individual if the individual believes the notion is wrong or unjust? Does not lawlessness beget lawlessness?”

In other words, the originalists and the conservatives say the Constitution is what the Founders put forth in their language and with their meanings. The anti-originalists and statists say the Constitution is whatever some judge says it is.

After destroying the position of the anti-originalists or statists, Mr. Levin shows how the implications of their position are destructive to our form of government and to the welfare of our people. If judges determine for society what is right and wrong, how can it be said that the judiciary is still coequal with the executive and legislative branch. This view destroys the Constitution’s creation of three co-equal branches.

What’s worse, the anti-originalists and statists see the judiciary as the “clearest path to amassing authority.” That’s because the judiciary can proclaim the law without challenge and without “concern with the fleeting outcome of an election cycle.” Furthermore, the judiciary is easiest to control, as it consists of only about 1,000 lawyers and the Supreme Court is made up of only nine.

Mr. Levin has an interesting discussion about President Franklin D. Roosevelt who started out as an originalist but ended up as a statist. His “Second Bill of Rights” was the beginning of that conversion. These were rights that delivered “security and prosperity.” For example, “The right to a useful and remunerative job in industries or shops or farms or mines of the Nation…”

Mr. Levin argues that all of these are not rights but the statist’s dream of a Utopia. He argues that to achieve this Utopia, the individual must surrender control of his fate to the government. He cites contemporary legal scholars who argue for a jurisprudence that embraces these ideas, and move toward “formal equality.” This judicial view may not be easy to see through, but it is what Mr. Levin calls “tyranny’s disguise.”

If in control, the anti-originalists and the statists can, if given judicial authority, act as an ongoing constitutional convention, “unilaterally amending the Constitution almost at will.”

Mr. Levin notes a majority of the Supreme Court, on occasion, have even justified the use of foreign law. Where does that take us?

“The arbitrary application of foreign law — which provides an activist justice with an infinite smorgasbord of legal options — is a rejection of the predicate for America’s governmental system. And it lasts as long as the next opinion.”

I’ve focused on the constitutional issue, because it shows how persuasively Mr. Levin makes the case that we have a choice between liberty and tyranny, and we are heading toward tyranny when we let judges dictate our law and what is right and wrong without regard to the executive or legislative branch, or the Constitution.

The Constitution is only one part of the picture — the liberals and the Democrats are rushing us down the road to tyranny. Mr. Levin’s book shows us how to stop that outcome and reassert and establish the sound values of conservatism, which are the same as the values of our Founders. Mr. Levin shows why we are in a battle for the survival of America and exactly what we have to do to win that battle. That is why this book is one of the most important of our times.

Herb Denenberg is a former Pennsylvania Insurance Commissioner, Pennsylvania Public Utility Commissioner, and professor at the Wharton School. He is a longtime Philadelphia journalist and consumer advocate. He is also a member of the Institute of Medicine of the National Academy of the Sciences. His column appears daily in The Bulletin. You can reach him at

TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: constitution; denenberg; marklevin

1 posted on 03/26/2009 1:12:07 PM PDT by jazusamo
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To: Fudd Fan


2 posted on 03/26/2009 1:15:54 PM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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To: IncPen; Nailbiter


later read

3 posted on 03/26/2009 1:18:38 PM PDT by Nailbiter
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To: jazusamo
Should Our Law Depend On Our Founders' Intentions Or Judge's Morals?

A Matter of Interpretation: Federal Courts and the Law, an essay by Justice Scalia, addresses this question. The book includes several responses and Scalia's rebuttal.

4 posted on 03/26/2009 1:20:37 PM PDT by FoxInSocks (B. Hussein Obama: Central Planning Czar)
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To: jazusamo

Judges’ WHAT?

5 posted on 03/26/2009 1:22:28 PM PDT by WayneS (Respect the 2nd Amendment; Repeal the 16th)
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To: WayneS

You picked up on that too? :)

6 posted on 03/26/2009 1:23:54 PM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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To: WayneS


7 posted on 03/26/2009 1:26:21 PM PDT by freekitty (Give me back my conservative vote.)
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To: jazusamo

The most chilling danger of a continuing 0bama administration is the damage he can do to the nation with judicial appointments.
His legislative agenda can be undone. His judicial appointments likely not...

It’s time to take back the country.

8 posted on 03/26/2009 1:26:43 PM PDT by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: jazusamo
Our constitution absolutely depended on and still depends upon the intentions of the founders. They wrote it and put it in place. That intent should be the bases for interpreting what it means...that is as plain as the nose on a person's face and is nothing but solid common sense.

A trait we are sorely lacking today.

And why?

Two reasons.

1st, the rising generation in this country has, by design, not been taught in their education what the underlying moral and philosphical groundings are for our liberty and freedom, our way of life, and prosperity.

Two, simply because there are those who have grown up among us and now in positions of power (and who were principle in creating condition number one) who knowingly want to "change" the basis for our government, our free market, our societal values and mores radically away from the founders intent.

It's that plain and simple.

And Barrack Hussein Obama is chief amongst them and proves it with every passing day. He said he was going to funamentally change America...and he meant it.

We must blunt his efforts in 2010, and then run him out of office on a rail in 2012.








9 posted on 03/26/2009 1:27:44 PM PDT by Jeff Head (Freedom is not free...never has been, never will be. (
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To: WayneS

Classic “Constrained vs Unconstrained Vision” argument.
Sowell’s Conflict of Visions.

10 posted on 03/26/2009 1:27:44 PM PDT by MrB (irreconcilable: One of two or more conflicting ideas or beliefs that cannot be brought into harmony.)
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To: Jeff Head; PubliusMM
We must blunt his efforts in 2010, and then run him out of office on a rail in 2012.

BUMP to you both!

11 posted on 03/26/2009 1:33:58 PM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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To: jazusamo

I never thought this day would come either.

12 posted on 03/26/2009 1:37:32 PM PDT by griswold3 (a good story is more compelling than the search for truth)
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To: jazusamo

“A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” — Thomas Jefferson

13 posted on 03/26/2009 2:26:52 PM PDT by RWB Patriot ("Let 'em learn the hard way, 'cause teaching them is more trouble than they're worth,")
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To: jazusamo

The big O never made it a secret that he was displeased with the Constitution. Anyone who voted for the big O thinking he would care about the Constitution that he received was uninformed, fooled, or fooling himself.

14 posted on 03/26/2009 4:29:51 PM PDT by HiTech RedNeck (Beat a better path, and the world will build a mousetrap at your door.)
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To: HiTech RedNeck

You’re so right, our boy president made it clear to anyone listening before he was elected he’s got little use for our Constitution.

15 posted on 03/26/2009 4:56:46 PM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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