IS ‘THE END OF AMERICA AS WE KNOW IT’ REALLY SO BAD?
I haven’t been screamed at by conservatives in a while so I thought I’d put that headline out there to see if any of them will take the bait.
The trap set, I would urge those of you inclined to be hip shooters to read the following in its entirety before you ride me out of town on a rail, tarred and feathered, drummed out of what’s left of the conservative movement for being such a jackass.
Frankly, I don’t need an excuse to be a jackass. Just ask my Zsu-Zsu whose legendary patience has been tried many times during the course of our 6 year relationship. It is a constant wonder to me that one so beautiful, generous, and smart would hook up with jackass like me.
It’s a physical thing, really.
It has been a constant refrain on blogs, at tea party protests, at health care town halls, and everywhere conservatives gather that Obamacare (and, by extension, the Obama presidency) means “The End of America as We Know It.”
Yes, but how well do you really “know” America? I say that because it isn’t the first time this refrain has been heard in American history and I daresay - hopefully - it won’t be the last.
Part of what makes America special is this fantastic ability we possess to re-invent ourselves to meet the challenges of a changing world. From Thomas Jefferson warning during the election of 1800 that re-electing Adams and the Federalists would result in the institution of a monarchy (”changing America as we know it”) through Andy Jackson’s populist revolution that “changed America as we know it,” through the the southerner’s warning that electing Abe Lincoln would “change America as we know it…”
I could go on and on. Teddy Roosevelt, Woodrow Wilson, FDR, Truman, Eisenhower, Johnson, Reagan - all of them “changed America as we knew it” at that time. The question, then, isn’t whether or not Obama is “changing America as we know it,” but rather what kind of America is likely to emerge after those changes have been made.
Each of those presidents mentioned above were responsible for great changes in the America they found when they entered office. But I would argue that every one of them were cognizant of, and adhered to, America’s First Principles (some to a greater degree than others) when re-inventing their America.
Even radical changes like those initiated by Lincoln and Franklin Roosevelt, made in reaction to the times in which they lived - made reluctantly as they were pulled and pushed by history’s tidal forces that were beyond their control - were tied to tradition, and America’s past. Can anyone doubt Lincoln’s belief in the Declaration of Independence when he redefined freedom in America with the Gettysburg Address? Or FDR’s devotion to the founding principles of America being a shared community where individual rights are respected?
America stands still for no one. We are a nation that wears size 20 boots, striding purposefully into the future with a cocky arrogance that steamrolls the past, stomping on those who stand in the way as we blithely and deliberately proceed to our date with destiny. For conservatives, it has always been a rearguard action to preserve tradition and fight for change that is based on those traditions and our First Principles rather than accept change that destroys the connection to our cherished past.
We lose some of these battles - but we win many more. Big changes may mean the “end of America as we know it,” but they also mean that essential truths gleaned through the centuries of American progress are nurtured and kept safe by those of us who value liberty, and the individual rights granted by the Constitution. There may have been an erosion of some of those rights in recent decades. But the core values that make us who we are and define the American experiment are intact, if not now constantly under attack by an overweening, overreaching, gargantuan government.
No one except some addle brained liberals believe that big government is not a threat to individual liberty, not to mention being at odds with the very first principle espoused by the Founders; that America should be a land of free men who govern themselves under a Constitution that clearly defines and limits the role of the federal government.
I don’t necessarily begrudge President Obama his efforts to “remake America” - if those efforts were carried out with a respect for that first principle uppermost in his mind. I would probably still oppose most of what he would do, but after all, elections have consequences and the president has a perfect right to try and change America if he finds it wanting in some respects.
But President Obama has no right to fundamentally alter the relationship between the governed and the government as defined in the Constitution. If he feels so strongly about having the federal government gradually taking over 1/6 of the American economy by being able to dictate to free men what kind of health care they will receive and their families will receive, then he should do it in the Constitutionally approved manner of amending our founding document to reflect that change.
The same can be said about takeovers of the auto industry, the financial services sector, and any other buy out by the government of private companies. The Constitution is a very supple document in that while changing it is difficult (as it is meant to be), just about anything can be amended that was unforeseen at the time it was written. If the temperance movement could get an amendment passed to ban liquor, just about anything can be shoehorned into our Basic Law that the people genuinely want.
Barack Obama is not playing by the rules. Whether through ignorance, or more likely a lack of interest, he has proposed changes to government that are in direct conflict with the basic principles by which we have governed ourselves for 221 years. He has replaced those size 20 boots with an industrial sized scythe and is imprudently mowing down fields that were planted with the seeds of self-governance, the primacy of the individual, and the notion of limited government - seeds that took root and have flourished through war and peace, economic calamity and prosperity.
What was done in painfully small increments before, is now being rushed to fruition in one, great, gigantic gulp of activism before we can digest and manage the change he is seeking to make. That may be his greatest transgression of all in that he refuses to acknowledge that America’s past is prologue, that the path to the future must be trod on the well worn trails and byways of history that his predecessors respected and revered.
It is not that he is seeking to “end America as we know it.” It is that he is trying to do it by breaking the ties that bind us to a past where our ancestors worked, sweated, fought, and bled to create a nation like no other. It is the president’s failure to contextualize his actions, giving them a frame of reference that the American people can grasp and claim as part of their patrimony of freedom and individual liberty where he has failed utterly.
And for that, he is finding his plans to “remake America” coming a cropper.
The real question: “Is he willing to sacrifice a second term, and drag all the Democratics down with him to go All-In, and force radical changes that force the collapse of Free-Market Capitalism, and weaken our Souvreignty with the Big Three pieces of legislation (Single Payer Health Care, Cap&Trade, and Illegal Immigration)?”
My guess: “Yes”
Comment by Jimi — 8/25/2009 @ 10:31 am
@RWNH: “Barack Obama is not playing by the rules. Whether through ignorance, or more likely a lack of interest, he has proposed changes to government that are in direct conflict with the basic principles by which we have governed ourselves for 221 years.”
I thought his knowledge of the Constitution and skills in interpreting it were impeccable, at least, that’s what we’ve been told. So it can’t be ignorance. I don’t think it’s a “lack” of interest. I think it’s a fantastically distorted view of the Constitution compared to what it means to people who have not been brought up in his environment. For him, “Shall not infringe” means it’s OK to take away that Right entirely. “Free speech” means only that speech which you agree with.
He’s playing by the rules, but it’s a very different interpretation of the rules than you or I can accept (or even understand).
Comment by DoorHold — 8/25/2009 @ 10:46 am
does anyone know of a case where any of these institutions that are blatant violations of the 10th amendment (Department of Education, Social Security, Medicare, Medicaid etc…) have ever been brought before the Supreme Court as being unconstitutional?
If not, why not? Surely we must have have some lawyers out there who believe in the Constitution, and some people with thick wallets to back them.
Every time I bring this up people jump down my throat, those programs help so many people, how could you attack them so harshly?
I agree, there are more than a couple members of my family drawing Social Security and Medicare, I dare say they couldn’t get by without them. But that’s not really the point. How “good” a program is has exactly zero bearing on whether or not it conflicts with the constitution.
This is why I get so worried when President’s start calling for compassionate Supreme Court Justices, who “consider the impact of their rulings”
I’m sorry, but you have to amend the Constitution if you want to do things that conflict with it. Otherwise, we set the precedent that the constitution can just be ignored when it is an inconvenience to the party in power. I fear this precedent has already been set and that this administration and the last one have followed it.
Comment by ken.mcloud — 8/25/2009 @ 11:10 am
#3
I blame Nixon and Johnson for that “ignore when inconvenient” precedent. In addition to FDR. Although some Presidents in the late 1800s were even more strict in abiding by the Constitution.
Comment by David R. Block — 8/25/2009 @ 11:50 am
Remaking America… I guess that I’m more scared about what the IG Torture Report means than I am about politicians trying to figure out a way to provide healthcare for everyone in the country. Just a different perspective. And now, back to Barack Obama single handedly destroying America…
Comment by Chuck Tucson — 8/25/2009 @ 1:17 pm
Mr Moran, Truly love to check your site - today you hit it out of the park - or should I say pulled a second baseman triple play. Turned my son, 17 and free thinker of his own, on to it. Most times I agree fully, sometimes not - but it is always worth the time to read and think upon. Today’s essay is one I will print out, post on the door of my room here in FOB Warrior Iraq to share with what I have come to know as the Next Great Generation and reflect upon often. You have captured the essence of the situation we are facing, in the best nation and hope for mankind. Many thanks and continued success. r/ snake PS: I share the same kind of relationship with my wife.
Comment by Gryphonskymaster — 8/25/2009 @ 1:59 pm
Hey! We’ve being making all the wrong moves for decades now. To me it started right around the time of Theodore Roosevelt and Woody Wilson. Now we screwed up by expanding government,we started the income tax, and we started that stupid green agenda. Than we let spending and government get out of control by eliminating the Gold Standard and letting FDR to seriously expand government and taxes. The only way we can bring the US back is by going back to a Gold Standard,eliminating the income tax and replace it with tariffs, massively cutting spending by something like 70%, and letting us use are resources like oil,coal, and natural gas. So far the Messiah has increased spending,raised taxes,increased regulation, and broke the machine that tells us what the countries debt.
Comment by charles — 8/25/2009 @ 2:39 pm
Simply brilliant Rick, Thank you!
Comment by Michael — 8/25/2009 @ 3:05 pm
Does not every generation say something like “Not like back when I was a kid”? America is constantly ending and beginning. The way we do things today is not the same as they were done 200, 100, 50, 20, or even 10 years ago. Nor will we be the same country we are today 10 years from now. We must continue to grow and change to match the new world that we find ourselves in.
Part of that change is realizing that what worked in a world mostly populated by farmers with animal drawn wagons, where 90% of the population never got more then 25 miles from their birth place, where news from other countries (or even other states) was weeks old when you first heard it, might not still be the best way of doing something.
@Charles - Which programs would you like to cut: The military, education, roads, something else? Would not these same programs then have to be picked up by either local government or private sector? Personally, I’d like to avoid going back to the days were the fire department would let your house burn down if you were not a paid up subscriber of their service.
@Door Hold - In what way is Obama stopping those who doesn’t agree with him from speaking? Are they rounding up Birthers, or folks who call him a Nazi or Racist, and I am just kind of missing it? At the same time is someone taking the guns from “A well regulated Militia”?
@Jimi - Personally, there is a part of me that likes the idea of a person who is willing to sacrifice everything they have in the hopes that it will create a better world for their children to grow up in. And, if as you seem to think, the democrats wind up out of power in the next 4 years, then can the next people in charge not shut the programs down? Or is health care reform some kind of perpetual motion machine we have to destroy the world to stop?
@ken.mcloud - So you think that a literal translation of the Consitution is the only thing that works, even though all of the lawyers can’t seem to agree on exactly what each part of it means. For example “bear arms” - Back when it was written anyone with money could equip themselves with weapons matching or even surpassing those that the government had. So, should this still apply? Should I, a citizen, be allowed to own a .50 BMG, 155mm howitzer, battleship, atomic bomb, if I have the money to buy or build it? If not then please explain why not.
Comment by KenGirard — 8/25/2009 @ 4:10 pm
@KenGirard-
first off, that’s an awfully handsome first name you have there!
Second off, wow! I’ve heard people deride strict literal interpretations of the Bible. I, myself often complain about fellow Christians who insist that the earth was made in exactly six days, that Eve was made from Adam’s rib, etc, etc… These folks immediacy rule out the possibility that there could be any metaphor at all in the good book.
But never, never in my life have I ever heard anyone deride someone for a “literal translation” of the U.S. Constitution!! Its a legal document for crying our loud! how the heck else are you supposed to interpret it?!?
I mean, I can see how two people could interpret any given clause in a slightly different way, but the notion that it is somehow ridiculous to take the document “literally” absolutely floors me! I almost fell out of my seat!
Are you seriously saying the Constitution is just full of metaphors and suggestions? wouldn’t it be outright lunacy to found a country with such a document as its foundation?
Are there other people who share your beliefs? were you taught this notion somewhere? this seems awfully dangerous to a society which is supposedly ruled by laws.
Comment by ken.mcloud — 8/25/2009 @ 4:37 pm
*sorry,
last sentance, second paragraph should read:
“these folks immediately…”
Comment by ken.mcloud — 8/25/2009 @ 4:44 pm
You know the fall of our nation will be do to debt, because were having trouble paying off the interest on our current deficit.
Comment by charles — 8/25/2009 @ 5:30 pm
Rick says:
“The same can be said about takeovers of the auto industry, the financial services sector, and any other buy out by the government of private companies.”
“Takeover”??…”Buy out”??
Why not just call it what it is Rick?
A loan, with interest.
The finacial services sector…
JP Morgan paid back 25 Billion dollars in TARP funds, with 795 million dollars in interest to the American taxpayer.
Goldman Sachs paid back 10 Billion in Tarp funds, with 425 Million dollars in interest to the American taxpayer.
BB&T repayed 3.1 Billion, with 92.7 million in interest to the American taxpayer.
American Express repayed 3.39 Billion.
Bank of New York Mellon repayed 3 Billion.
Capital One Financial repayed 3.57 billion
State Street repayed 2 billion.
Northern Trust repayed 1.58 billion.
U.S. Bancorp repayed 6.6 Billion.
Dozens of smaller banks have also paid back their TARP funds.
So the government didn’t really “take over” the financial services sector…They simply loaned them money, and are making a profit for their efforts.
The auto industry…
Now this one is a “buy out”…but not a “takeover”.
By “auto industry” you must mean General Motors, Chysler, and GMAC…which are not exactly the “auto industry”…but they’re a chunk of it in this country..
Foreign car companies employ about 115,000 Americans throughout the south…that’s part of the auto industry in America..
Two-thirds of “foreign imports” are, in fact, built in the United States in nonunion shops.
Ford isn’t doing too bad..
The US government owns 61 per cent of the new General Motors and eight per cent of Chrysler…That money likely wont be paid back..
This is why the Treasury Department needs to hold those shares until a time when they can make a profit for the American taxpayer..
They’re expecting to dump shares in a GM IPO in 2010…and hold some shares in case the price takes off…Sounds smart to me…But I’m sure the Treasury Department is lying about all that…Right?
Maybe it’s that you think that increasing regulation on these institutions to make them more accountable for their bad business practices is equal to a “take over”…I don’t know…But regulation of business is a significant part of those “basic principles by which we have governed ourselves for 221 years”..
Comment by Moltenorb — 8/25/2009 @ 6:19 pm
@ken.mcloud:
“the notion that it is somehow ridiculous to take the [Constitution] “literally” absolutely floors me.”
It’s a very valid and “traditional” school of jurisprudence called “Original Intent” (highlighted most recently bu the Court under Warren). The way you seem to favor interpreting it is called “strict constructionism” or “four corners”. Neither is “right” or “wrong” in the sense that both are accepted as being logically coherend and defensible.
Original Intent posits that the Founding Fathers were wise enough to recognize that things change. No document could cover every possible future situation, or absolutely define every word within it beyond dispute (what does “Militia” mean?). What the law should do is look at new situations in light of the original intent of the fathers. Use the language of the text, as well as what they wrote about their beliefs, and try to apply/construe the law to make them proud (basically).
Consider the 1st Amendment as an example: “Congress shall make no law . . . abridging the freedom of speech”. Literally, that says that NO laws abridging freedom of speech. I can yell “fire” in a crowded building, I can threaten to kill you, I can urge a crowd to go on a muderous rampage . . . Congress can’t outlaw those behaviors. Oh, and by the way, I’m a performance artist and my free-speech-protected “art” involves screwing sheep in public while smeared with feces. It’s party time!!
That may be a grammatically valid reading of what they literally wrote . . . but that’s not what they meant. They understood the concept of what are called “Time, Place, Manner” limitations on unlimited speech.
The basis for Intenters is to try and fathom what the Founding Fathers would have said about a modern issue if they were here now. It is beyond dispute that the Constitution does not assign the authority for telecommunications infrastructure to the Federal government. That doesn’t mean that they wanted the 13 States to be responsible for it . . . they never even concieved of it as a possibility. Based on what they intended the Federal government to be (which despite what some people think is NOT always obvious), what would they have said?
This is a very long and convoluted topic, so I’ll just say that yes, it’s “reasonable” to eschew a blindingly literal reading of the Constitution, and it’s just as valid to think this is nonsense and insist on sticking to the “four corners of the document”, or something in between. All are valid.
But let me add this: the main reason to have different interpretative approaches (as well as the reason to have a Judiciary at all) is because people disagree over what things mean. Let me give you an example from your comment#3:
“does anyone know of a case where any of these institutions that are blatant violations of the 10th amendment (. . . Social Security . . .) have ever been brought before the Supreme Court as being unconstitutional”
That’s not a blatant violation . . . because the Supreme Court already said it wasn’t.
Steward Machine Company v. Davis, 301 U.S, 548 (1937)
Helvering v. Davis, 301 U.S. 619 (1937)
Authorized under the general taxation powers to promote the general welfare.
Now, you disagree with this. So did the dissenters on the Court. There are extremely few cases that get decided 9-0. It doesn’t legaly matter whether you disagree with them or not: the call’s been made, and so “the matter is decided” (”stare decisis”, although my latin spelling is pretty rusty). If you want all the cases decided in a way you agree with . . . get a robe.
I’m not trying to be rude. It’s perfectly legitimate to interpret the Constitution the way you do. But as a legal matter the fact that you (or I) interpret it in a particular way is irrevelant — as it was explained to me, “if the Supreme Court calls an apple a banana, then it’s a banana”.
That may sound ridiculous. But its absolutely, verifiably, indisputably true (and vitally necessary), regardless of how ridiculous it may be.
Comment by busboy33 — 8/25/2009 @ 6:27 pm
@busboy33
But let me add this: the main reason to have different interpretative approaches (as well as the reason to have a Judiciary at all) is because people disagree over what things mean.
People can disagree all they want over what things mean - that still does not answer the question - what the hell is the law ?
“Different interpretative approaches” turns out to be more often than not, an euphemism for the way liberals have tried to fundamentally change this country knowing fully well that they would not be able to so using Constitutional Amendments.
Here is a thought experiment - if this Union dissolved today with conservatives/libertarians on one side with liberals/socialists on the other - and two new Countries were to be formed EACH having their own Constitution, does any one think that the liberals would even allow for something that comes close to the 10th Amendment?
Does any one think that liberals would stand for an individual right to bear arms ? Or for a right to free speech (without any provisions to hate speech?)
Btw, thanks for pointing out Helerving versus Davis - i did some research and found out that in a Supreme Court that had six conservatives and three liberals, the decision was 7-2 in favor of declaring SS legal- four conservatives who vehemently criticized the New Deal
supported it !
Now how could this be ? Ahh… it was that wheelchair bound Roosevelt who threatened to pack the Court with 15 Justices ! He asked Congress to enact a bill empowering him to appoint one additional Justice for every one who turned 70 and did not retire, for a maximum of six, thus enlarging the Supreme Court from nine Justices to up to fifteen.
It is jawdropping to see how much power Roosevelt exercised after his landslide victory of 1936 - he was furious that the SC struck down the Agricultural Adjustment Act on January 6, 1936, the Guffey Coal Act on May 18, and the Municipal Bankruptcy Act and a New York state law setting minimum wages for women on May 25.
After his threat, the conservative Justices basically shut up and put up. And sided with the three liberals on the Court that Social Security taxes were constitutional.
It is truly fascinating to read the history behind Social Security - today liberals routinely bleat that it is a safety net for elders - but when FDR defended it in the SC, he argued that he did it for the general welfare of old people during troubled economic times and that Social Security does NOT guarantee annuities or gratuities !
That it was nothing more than a scheme to raise tax revenue inorder to help old people !
Social Security was not sold as an “insurance” scheme for old people by the very man who envisioned it
Wow, FDR’s machinations truly make Obama look honest as hell.
The next time any one compares Obama to FDR, i swear to God that I am going to laugh out loud - Obama does indeed have the same dishonesty as FDR but he does not have the ruthlessness of an FDR.Is it any wonder that FDR’s reign marked the beginning of the end for true American conservativsm ?
Comment by Nagarajan Sivakumar — 8/25/2009 @ 8:04 pm
@busboy33,
Another fall out of the Helvering v Davis case what that it “forced” employers to pay the Social Security tax - i.e. make a “matching” contribution to the employee’s contribution.
But as any one who has worked in a small business or start up knows, those taxes are actually passed on BACK to the employees - the employer calculates how much social security tax he has to pay for an employee if he hires him/her and then reduces his offer by that amount - the tax on that reduced salary goes towards paying the “employers matching” contribution while all along it came from the employee’s would be salary if not for the SS tax.
Helvering and the IRS might have won that case - but more than Davis, it would employees of the future who would lose and continue to lose through out their working careers.
And conservatives keep telling every one that we live in a right of center country - Huh?? REALLY?
Comment by Nagarajan Sivakumar — 8/25/2009 @ 8:11 pm
@Nagarajan Sivakumar:
I’m not disputing that at all — to be honest, I can’t think of a single case of theirs that doesn’t have negative implications, in some fashion to some people.
But I also can’t think of a decision that doesn’t also have some positive aspect to it either. Even Dred Scot, a decision so disgusting and offensive to read even they admitted they were wrong, could be seen as a “positive” in the sense that it strengthened the importance of private property rights against government nullification.
In my opinion the rationale in Steward Machine Company v. Davis was bad. Very, very bad. “You guys are demonstrably idiots” bad.
But they got robes and I don’t (and the few times I did get to wear a robe theirs outranked mine to a considerable degree). They may be “wrong” on SMC v. Davis in my opinion, but since “wrong” is defined whenever they decide in the law they are technically always “right”.
That’s an unfortunate reality of our system. I believe (as did the founding Fathers) that the pros of the system outweighed this con, but that doesn’t make it any more paletable.
Comment by busboy33 — 8/25/2009 @ 11:43 pm
@Nagarajan Sivakumar(#15):
(Apologies for adressing your comments out of order — #16 appeared before #15 for some reason)
“People can disagree all they want over what things mean - that still does not answer the question - what the hell is the law?”
You’re asking two questions here.
1st: what is the actual text of rules that control our lives? Mostly Statutes (Federal, State, and Local) although there are still some Common Law rules (pre-statute judicial rulings) and interpretations of rules (case precedent).
2nd: What do the words contained in the body of laws actually mean? The judiciary dictates that. They can’t change the words of the law, but they do dictate what those words mean. The Legislative body writes them, the Exectutive acts on them, and the Judiciary decides what they mean. That’s the basis of the “checks and balances” in the system: Each branch is absolutely dominant in one aspect of the law, but completely powerless in the other two.
Opponents of Judicial decisions often refer to “judicial activism”, making the (true) observation that when a court renders a decision, that is essentially a law, and therefore the court is “writing law”. But there is a simple remedy to this: the legislative branch can simply write a new law overriding the previous rules (thereby removing any justification for the decision).
“‘Different interpretative approaches’ turns out to be more often than not, an euphemism for the way liberals have tried to fundamentally change this country knowing fully well that they would not be able to so using Constitutional Amendments.”
With honest respect for your opinions, you are absolutely wrong. From your statement I infer a few facts: liberals are dishonest in their interpretations, and conservatives not. That makes sense to me, since I gather from your comments on this site that you agree with the conservatives.
Certainly there are dishonest and manipulative liberals. But considering the prior (conservative) administration was trying to justify using troops to make arrests just to test how far they could violate the 4th Amendment(http://www.reuters.com/article/domesticNews/idUSTRE56O09620090725?feedType=RSS&feedName=domesticNews), the idea that such behavior is a “liberal” trait is naive.
I know you said “more often than not”, but lets not beat around the bush. Liberals do it, conservatives don’t. That’s wrong. People do it. And people don’t do it. They come in all flavors.
“does any one think that the liberals would even allow for something that comes close to the 10th Amendment?”
On this site I’m considered liberal, and I certainly would. There’s a reason it was created (a firewall against a powergrab by the central government) that is still relevant today. Y’know . . . similar in spirit (if not in legal procedure) to the powergrab by the central government I just described above. The one by conservatives, those bastions of individual and State’s rights.
Obviously it wasn’t something that “the conservatives” tried to do . . . it was something done by specific people that are conservatives. This may shock you, but liberals don’t all fanatically obey and follow a central command. I truly hope that you only believe that because you have no respect for liberals, because the other rationale would be that blind slavish obedience is the standard for conservatives and you just assumed everybody worked that way . . . and that would be stunningly disappointing.
“Does any one think that liberals would stand for an individual right to bear arms?”
A great example. I take it then that you support an “individual’s right to bear arms”. So you are in favor of:
*) letting murderers (individuals) have guns?
*) letting me (a liberal who isn’t to be trusted) stockpile stinger missles and a few tons of plastic explosives (arms)?
I assume you’re taking the “right to bear arms” from the 2nd amendment” — a great example of interpretative manipulation. The Amendment does include those words, but only after a preferatory clause:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Note that of the 10 Amendments in the Bill of Rights, this is the only one that has preferatory (modifying) language. “The right to bear arms” was the only one that the framers felt needed a written explanation of the motivation behind it.
So what does the preface actually mean? Let’s look to the likely source of the language . . . the Virginia Bill of Rights from 1776:
“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
The people should keep arms and the States should keep Militias (essentially National Guard divisions) because the United States should not maintain a standing Military.
So, as a conservative who supports the people’s right to bear arms, you must support dangerous people driving tanks loaded with shells thru town . . . and you think the country should abolish the armed forces. That’s what it says.
I assume you don’t support either of those things because you’re clearly not an idiot (and if you do, then again with respect I am wrong and you ARE an idiot). So you are constructively interpreting the language as much as any liberal.
“Or for a right to free speech (without any provisions to hate speech?)”
This liberal Administration has not stopped people showing up to town hall meetings with this Liberal president carrying assault rifles and waving signs labeling him Hitler. His town halls have been open, and he has on more than one occasion specifically sought out dissenters in the crowd to speak to directly.
http://www.foxnews.com/politics/2009/08/14/obamas-health-care-quest-heads-west/
When the free speech conservatives were in power, only supporters were allowed into town halls with the conservative president and people wearing pro-democrat clothing were not just barred from entering but arrested.
http://www.foxnews.com/story/0,2933,205112,00.html
Would liberals want a provision barring hate speech? I’m sure that a liberal somewhere thinks that’s a good idea. Most liberals wouldn’t. Limitations of free speech should be dealt with in the judiciary. The constitution should not be amended to make every rule “Constitutional”. Modifying the right to free speech to ban hate speech at a Constitutional level would be as just as shallow and stupid as something like modifying the rights in the 1st Amendment to prohibit burning a flag.
http://www.foxnews.com/story/0,2933,160443,00.html
. . . What were we talking about again? Oh yes, it was that liberals want to subvert the Constitution and conservatives are the true defenders of the text.
Comment by busboy33 — 8/26/2009 @ 6:55 am
so what exactly was the legal argument in those cases that circumvented the 10th amendment?
that the federal government operating an “insurance” operation qualifies as “regulating commerce amongst the several states”?
did they infer that the founders actually intended to add some “social justice” clause to the constitution and they just forgot to put it in? did they hold that this hypothetical, manufactured, imaginary clause was enough to satisfy the 10th amendment?
did they rule on some legal technicality of that particular case?
Or did they take the route that Sotomayor did in the Ricci case and not even offer an explanation for their ruling?
Comment by ken.mcloud — 8/26/2009 @ 7:31 am
@ken.mcloud:
http://www.oyez.org/cases/1901-1939/1936/1936_837/
(brief summary of the Steward Machine case, with a link to the full text of the decision on the left of the page)
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0301_0619_ZS.html
(summary of Helvering, with a link to the full text of the opinion at the top of the page)
“Or did they take the route that Sotomayor did in the Ricci case and not even offer an explanation for their ruling?”
The unanimous Appelate Court in Ricci agreed with the rationale of the trial court:
“We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. [citation]. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted
with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.”
http://www.ca2.uscourts.gov/decisions/isysquery/ca4649bf-2360-4eb9-a227-79fccae85535/4/doc/06-4996-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ca4649bf-2360-4eb9-a227-79fccae85535/4/hilite/
Since the trial court already explained their rationale,and the Appellate Court agreed with them, there was no need to re-write everything the trial court already said. Here’s the trial court’s (pretty damn through) explanation:
http://online.wsj.com/public/resources/documents/federalcourt-ricci06-03903.pdf
The Appeals Court (again, the unanimous Appeals Court) basically said “yeah, their explanation is right”. What did you want them to say?
Comment by busboy33 — 8/26/2009 @ 8:27 am
I’m an odd sort of duck. I prefer to read the actual words of the Constitution and abide by those specifically and literally. I don’t want to know what someone else thinks they “mean” and I don’t want any moron to start talking about how the Constitution is a “living document” which is just liberalspeak for screwing around with the most basic law of our land.
Re the Constitution - it is what it is. It’s the basis of our REPUBLIC (not democracy to those pinheads who insist on calling it such).
Our current president is rapidly carving out a niche for himself as unarguably the absolute worst president in the history of the Republic - against some touch competition (James Earl Carter, Jr. comes to mind together with Warren G. Harding). I don’t think he has committed any impeachable offenses so far, but he can be constrained by the election of an opposition in both the House and the Senate. The removal of the Botox Queen and the Cadaver from power would go a long way towards protecting our land!
Comment by Gayle Miller — 8/26/2009 @ 8:43 am
I meant tough, not touch
Comment by Gayle Miller — 8/26/2009 @ 8:44 am
That first link to the Steward Machine summary does not contain a link to the full text of the decisioin — I misread the link on the left.
Here is a link to the full text:
http://newdeal.feri.org/court/301US548.htm
@ken.mcloud:
as I said before, the justification was “general welfare”. The national government can tax, taxing labor is traditionally acceptable, and the problem of unemployment was considered a legitimate national issue. That sounds dangerously vague, but only because it can’t really be summed up in a couple of sentences. The text is thick and often boring, but the explanation is all there, with references to all the case precedents that they used to justify it.
Comment by busboy33 — 8/26/2009 @ 12:48 pm
bussboy-
So the ruling gives the green light for taxes not delineated in the constitution, what about powers other than taxing? (i.e. Department of Education, administering healthcare, etc…)
granted, these powers need taxation in order to pay for them, but the powers there that need to be justified go beyond just taxation.
Comment by ken.mcloud — 8/26/2009 @ 1:22 pm
@ken.mcloud:
Right up front, being a very brief generalization the following is not completely accurate. As I said before, this is complex and complicated and can’t effectively be summed up in brief bullet points. I’ll do the best I can.
The usual origin for the Federal government’s authority under issues like this is Article 1, Section 8, Clause 1:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . ”
. . . and clause 18:
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers. . .”
The specific language is “general welfare”. The Federal government has the authority to, as it says in the preamble, “promote the general welfare”. Something that is for the good of us Nationally, not just for one State. Congress has the authority to raise funds to pay for the general welfare and then spend it to effect that purpose.
The Department of Education promotes the general welfare of the Nation by providing necessary educational direction. How ignorant we all are affects us as a country, so its a National (not a State) issue. Same for healthcare, food safety, environmental issues (that impact more than one State), etc.
Again, as a general rule, if something ONLY effects a single State, then the Federal government usually does not have the authority to control the issue. If it effects more than one State (and “effects more than one State” is usually interpreted very, very broadly), then the matter is “general welfare”, and the Federal government (Congress) has the authority per Article 1 to control the issue.
Now, if you can make an argument that education, healthcare, telecommunications, food and workplace safety, environmental concerns and the like are exclusively limitied in impact to only one State, then you can make a case. That’s what you usually see in EPA cases. The EPA comes into a State and starts controlling how a pond in someone’s backyard is being used or effected, and the owners sue claiming that it doesn’t involve interstate issues. A pack of migratory birds stops there once a year as they fly between States . . . and the matter just became an interstate issue.
Another current example is Medical Marijuana here in California. The DEA raids shops that sell it, and the defendants argue that since the drug was grown and used in California, the DEA has no authority to get involved. That fight is still being worked out as far as I know.
Think about it like this: the States are like people in a town (America). Each person is equal to each other. If a person wants to do something in the privacy of their own home, it’s not the town’s buisness. The instant it goes outside into public, then the town becomes involved.
Want to run around your house bare-ass naked? Enjoy. Are the windoes open and I (your neighbor) can see it? Then someone representing the town is going to come knocking to tell you either knock it off or at least close the damn blinds.
We (as States) are equal in authority. I have no authority to make you stop, and you have no authroity to make me stop looking in your windows. So unless we both agree (Constitution) to give authority to a 3rd party (Fed Govt) to settle disputes between us, then eventually there’s going to be a fight.
@Gayle Miller:
“I’m an odd sort of duck. I prefer to read the actual words of the Constitution and abide by those specifically and literally.”
Art.1, Section 8, clauses 12 and 13:
“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy”
Congress has the power to “maintain” a navy. It specifically states “maintain” when it talks about the Navy. It has the power to “support” an Army . . . not “maintain”. By using two different words it is clear that they intended the Army and the Navy to be treated differently, as further evidences by them putting specific time limits on how long to authorize funding for an Army and no time limits on funding the Navy.
The literal interpretation of those specific clauses is that the United States only has Constitutional authority to maintain a standing Navy. We are NOT permitted constitutionally to have a standing Army. We can raise a temporary one, but then we need to abolish it when we’re done. These are the clear, literal, specific words of the Framers — they didn’t want this country to have a standing Army (see also Art.1, sec.8 cl. 15 and 16 to further make that absolutely clear). No tricky subversive interpretation involved.
(I’m not going to even begin to point out how unconstitutional an Air Force must be)
Since you “prefer to read the actual words of the Constitution and abide by those specifically and literally”, are you in favor of abolishing the Army (when the current conflicts are over) as unconstitutional? If not, how are you abiding by the specific and literal words of the text?
Comment by busboy33 — 8/26/2009 @ 5:17 pm
@busboy,
What do the words contained in the body of laws actually mean? The judiciary dictates that. They can’t change the words of the law, but they do dictate what those words mean.
Wow, you did use the word “dictate”
And here i thought that the Courts were supposed to be following laws as they were written - if there is no such thing as real meaning/intent/purpose for these laws and judges can view/interpret them as they see it fit, what kind of a system are we looking at ?
I do understand that the law does not cover for everything and every scenario - BUT, its origins and intentions need to be understood and agreed upon - that would be the very basis of changing them i.e. they no longer apply as they were originally written or envisioned.
Your question about having a standing US Army would fit this case - there was a reason that the Founding Fathers did not want to maintain/support an Army for more than a few years. They made sure that the Second Amendment would allow for people to arm themselves so that they could protect themselves - without the Government taking this right away from them. Their foremost fears was of a tyrannical Government FROM WITHIN - not an external one.
IF there was a foreign invasion, these same armed individuals could come together and join the Army, militias etc in helping to defend the homeland. BUT, they were left to defend themselves first and foremost - they could also rebel against a powerful and tyrannical central Government - similar to the one that America freed itself from.
We can debate all day long as to what these words mean - but the most important words IMHO, would be “shall not be infringed”.
Why is this important ? The Second Amendment is revolutionary in the sense that it says that it is there to protect and guarantee the right to defend oneself through bearing arms. It does not establish this right - it merely seeks to protect it from Government’s long nose. It indirectly acknowledges that this right already exists
So what is the source of the right to protect oneself ? Natural law. Self preservation.
http://plato.stanford.edu/entries/natural-law-ethics/
If the US has a standing Army now, it is contradiction to the spirit in which the original laws were made. BUT, we dont live in 1789 any more. The US has been intervening in world affairs since the conquest of California. And it is most definitely not the country the Founding FAther’s envisioned.
Btw, the Founding FAthers didnt grant the right to bear arms so that criminals could use it - they would all be for sane regulation - so your paranoia about the 2nd Amendment is not exactly warranted here. And even if these criminals got arms through loopholes, they would nt be able to attack innocent people with no impunity - they should know that the law allows them to protect themselves - a law that is enshrined in the Bill of Rights.
You still havent answered the question on whether liberals would allow for an individual right if they were to form a new Consitution - you only debated the meaning of the already existing one.
I will answer your questions on the First Amendment etc in another post
Comment by Nagarajan Sivakumar — 8/26/2009 @ 8:35 pm
@busboy33,
Your point about the Flag Burning amendment is well taken - no one who calls himself conservative should be supporting that - free speech/expression protection often involves protecting ugliness -not because we approve it etc but because we dont want to go down the slippery slope of censorship and thought police. And of course no one has the right to “not be offended”
Btw, when the Danish cartoons of Prophet Muhammad was a raging controversy, NOT A SINGLE LIBERAL newspaper published the entire set of cartoons - remember, the so called Fourth Estate is supposed to be for free speech et al?
Only the Weekly Standard came close
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/697dhzzd.asp
There is hypocrisy on both sides and i readily admit to that.
Btw, your “general welfare” argument is pretty elastic and can be used to justify not publishing the cartoons - the NY Times can point to the number of people who were killed in protests etc and say that it is worried that a similar reaction could happen if it published the cartoons again.
The Weekly Standard called that “it could lead to violence” bluff, but “general welfare” could be expanded to mean pretty much any thing by any one.
Your use of this term to justify agencies like the Department of Education points to the wide gulf that exists between conservatives and liberals on the most fundamental issues of the day.
Conservatives such as myself believe that education is an important thing - but not for the Federal Government to control - no it is not a “national” issue - its a local issue - its a family issue - by getting myself educated, I am doing first and foremost myslef a favor -and my immediate family - not my “nation” - that is only a side effect of me getting educated.
You dont get a job to drive down the national unemployment rate - you dont do it to increase the nation’s GDP. You do it first and foremost to feed yourself and your family and to live an independent and self reliant life - the one that your Founding Fathers cherished and fought so hard to win. What ever happens because of that is an effect of your personal situation.
This does not mean that we have no concerns for people who are less than able to fend for themselves - we just dont think it necessarily means that the Government should intervene in such a forceful way in the affairs of each state. We are also not naive enough to believe that all the Govt wants to do is to “educate” - Government officials have their own agenda on what it means to be educated - and sorry, they are not exactly paragons of virtue and neutrality.
If the Founding Fathers thought that education was a right, and that having three square meals a day was a right or living healthy was a right, they would not have hesitated to put it in the Bill Of Rights. They would not have hesitated to have the Dept of Education.
But their intent was not that. They wanted Government to GET OUT OF THE WAY - and do only what was minimally necessary for a state to function - they thought it was a necessary evil - NOT a force for good.
The Bill of Rights reads like the Ten Commandments - THOU SHALL NOT DO THIS/THAT etc - why is it a charter of negative liberties ?
Because the Founding Fathers DEEPLY Distrusted Man and hence Government.
I dont want to bore you any more, but i hope you understand where conservative’s clamour of limited Govt comes from. Yes, conservative politicians may be hypocritical ( No Child Left Behind !!!) - no, that does not mean we have principles of convenience.
Sincerely,
Naga
Comment by Nagarajan Sivakumar — 8/26/2009 @ 9:01 pm
@Naga:
Although I am cast in the role of a liberal here, I agree in limited government wholeheartedly. I have no faith in the “good intentions” of the vast majority of the population, and I think more highly of them by leaps and bounds than I do of politicians.
Most people I know, of all beliefs, believe in limited government in some form or another. The magic word is “limited”. What does that mean? It sounds like a silly question, but the meaning of that word is different to everybody. If “limited government” means what is exclusively in the document, then as I said above the Army has to be abolished. A standing Army is not only not authorized, it is clearly prohibited, since the militias were explicitly tasked with filling that role in terms of National Defense. I don’t think that there is anybody here that wants to abolish the Army, so we all agree that even a limited government goes beyond the language of the Constitution. Whether to go beyond the text isn’t the issue . . . how far to go beyond is.
You mentioned that the Bill of Rights doesn’t include any provision for education. True. But Congress doesn’t get it’s authority from the Bill of Rights . . . they get their authority from Article I of the main body. The Bill of Rights limits the Constitutional powers of the government — it doesn’t create them. The Framers ratified the Constitution, and then after that Amended the document with the Bill of Rights to put restraints on what they had made.
So turn the argument around: The Framers specifically limited what the Federal government could do. They made sure to specifically state what they did NOT want the Feds to start doing. They did not prohibit the Federal government from being involved in the issue of education.
Rather than presuming that they didn’t want the Feds involved in education . . . isn’t it a reasonable interpretation that by not expressly prohibiting them from exercising authority in that arena they implicity endorsed it? They said “you have the power to act for the ‘general welfare’, but that does NOT mean A, B, C, D, or E”. If Education is an issue that is properly considered ‘general welfare’, and it isn’t A, B, C, D, or E, then despite the fact that it isn’t expressly authorized it is still a valid area for the Fed.
You mentioned the example of the cartoons being published as an issue that could be argued to relate to ‘general welfare’, and it makes a perfect example. The NY Times is a private company — they’re not the government. They aren’t bound by the same Constitutional restrictions. They can choose to publish them, or not publish them, at their discretion.
Now if the Federal government decided it was a matter of the general welfare, they could try and order the Standard not to print them. That’s where the 1st Amendment comes in: “you (the Feds) have the power to deal with the general welfare . . . but we want to make clear that does NOT include speech. You can’t ban speech as part of promoting the general welfare — that’s NOT part of your mandate”. The Amendment limits the definition of general welfare, but it doesn’t define it. It defines what ISN’T part of the general welfare.
So we are back to the question, what do the words ‘general welfare’ encompass? You said:
“Your use of this term to justify agencies like the Department of Education points to the wide gulf that exists between conservatives and liberals on the most fundamental issues of the day.”
My point in all of this has been that it’s not MY argument. I’m not defending it or saying it is correct. Congress has determined that is is part of the general welfare of the nation. The Supreme Court has so far agreed with them. As a practical matter, those are the only opinions that count. THEY define those words, not you or I. As Chief Justice Roberts said, they’re the umpires. They call the balls and strikes. They called this one a strike. Are they wrong? Maybe . . . but it’s still a strike.
KenMcloud said there was no authority for these aspects of the Federal government, and that’s not accurate. I think what he means is that he doesn’t agree with the authority claimed. That’s fair. But its also irrevelant. We the people do not define ‘general welfare’. It’s not our call to make. The umpire has made the call, and even if we’re sitting in the stands screaming “the Ump is blind!!” . . . they still made the call, and according to the rules of the game it’s their call to make.
As you said, you don’t get a job to impact the GDP. That’s not the motivation for the individual . . . but it does impact the GDP to some miniscule degree, whether intended or not. You don’t fill in the pond in your backyard to impact the general welfare . . . but the umpire says it does. We can’t veto the umpire’s decision. All we can do is vote in new umpires that aren’t idiots.
Comment by busboy33 — 8/26/2009 @ 11:47 pm
You mentioned that the Bill of Rights doesn’t include any provision for education. True. But Congress doesn’t get it’s authority from the Bill of Rights . . . they get their authority from Article I of the main body. The Bill of Rights limits the Constitutional powers of the government — it doesn’t create them. The Framers ratified the Constitution, and then after that Amended the document with the Bill of Rights to put restraints on what they had made.
Congress may not get its authority from the Bill of Rights - that was never my point. It gets it’s authority from the consent of those who are governed. And if it governs by saying “WE WON, YOU SHUT UP!” just like Obama’s
minions started saying after last year’s elections, what is the point of being President of all people ? He is not just the President of the states he carried, right ?
My point about the Dept of Education once again goes to the question of general welfare - according to you, this idea of what is general welfare is decided by a majority of Congressmen and backed by the Courts. Unfortunately, this is nothing more than majority rule and it could be used as an excuse to do pretty much anything in the name of “general welfare”. And unfortunately that has precisely what has happened in this country in the last 100 years. They may all be legally justified, but are they ethically justified ?
Even worse, it puts the Government as the prime mover of “general welfare” - in a Constitutional Republic where the rights of the minority are to be protected, when ever a Government agency is created in the name of “general welfare” we have to ask ourselves, what exactly gave the Congress or the Executive the power to do anything that they like in the name of “general welfare” ? A 55% popular vote ?
What ever happened to the notion of limiting Government’s power ? After all there are no limits to what a Government CAN DO if it is all done in the name of welfare.
And more importantly, who is going to pay for this “general welfare”? - the taxpayer of course. Including the taxpayer who has very serious doubts that it promotes anything OTHER THAN Government itself.
What metrics does the Government get measured by when promoting “general welfare”? Let’s take the Department of Education - what exactly has it achieved in all these years of public school system ? Why do students lack basic proficiency in reading, writing and math? Money has been POURED into the public school system every year without producing any significant results.
Just yesterday, the L.A. Unified School District voted to allow charter schools to run and improve the poorest performing public schools - we are talking about California here - among the most liberal states in the country !
The notion of general welfare has exceeded all bounds and it rests upon coercion of citizens who simply dont just agree with it but point to its fallacies and obvious shortcomings.
We are now at the stage where the Government can dictate how much energy you can and cannot use if you are a business or homeowner with cap and trade laws - ALL IN THE NAME of GENERAL/GLOBAL WELFARE !
The Framers of the Constitution may not have restricted the Government from not having a Federal Dept of Energy - but they sure as hell didnt envision the day when the Government could decide how much carbon could be emitted by a business. They sure as hell didnt envision the Federal Government becoming a Levithan that controls the life of an individual to such an enormous extent.
This is where the intent of having a Constitutional Government comes into play - this is where the idea of limiting the powers of Govt comes into play. But as some one said, a team can only be as strong as its weakest link.
Ben Franklin’s famous quote of what exactly the people of America had got was - A Republic, if you can keep it
seems so prescient.
One thing we can agree on, busboy - the leaders of this country are elected by the people - directly in almost all cases - a country’s leadership is only as good as a large majority of its people.
The citizens of this country have failed the Republic and themselves by voting for larger and more expansive Government on the backs of a majority of those who truly detest it and yet have to pay for its monstrosities.
Hayek’s Road to Serfdom should be recommended reading for any one who loves liberty and calls him/herself a classical liberal.
It takes on the notion of general welfare and how it is a fatal conceit for a top down central burueaucracy to try and impose its vision of what is good on the world.
Comment by Nagarajan Sivakumar — 8/27/2009 @ 8:02 pm