Tuesday, October 28, 2008

Power Reserved to the People, Respectively

"The best way to limit the federal Leviathan is to have Congress and the presidency controlled by different parties," said Ilya Shapiro of the blog of the Cato Institute. http://www.cato-at-liberty.org/2008/10/24/a-plea-for-divided-government/

Wrong. That statement of Shapiro's demonstrates the similarities between the so-called conservatives and the out-and-out liberals.

The best way to limit the federal Leviathian is to stick to the origins of the Constitution. That is called "originalism," or sometimes "original intent". Wikipedia explains it this way:

"In the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting."

This does not in any way prevent it from being applied to American law in any decade or any century. The original intent can--and ought--to be applied because that was the intent of those who wrote it. They provided us with the means to change their intentions, and that means was not to ignore their intentions. That means was not to place any meaning on their words that fit our purposes. That means was to either nullify by Amendment where necessary, or alter by legislation where allowed, the intention of their words.

The answer to the question of why we, in the 21st Century ought to follow the spirit of their words is because that spirit is the spirit of Americanism. We can keep the spirit but change the words that transfigure what they saw in the 18th C. into what we see in the 21st. To ignore their intent is "rule by men", not rule by law.

Original intent theory is interpretation of the Constitution consistent with what was meant by those who drafted and ratified it.

The original meaning theory, which is closely related to textualism, is the view that reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justices Scalia and Thomas, are associated.

Just this year the Supreme Court proved that originalism could be used effectively, when it ruled on the Second Amendment right to bear arms. The Court effectively nullified the first clause which made the Amendment appear to require a "well maintained militia" to enable the right to bear arms. The Court, after reviewing hundreds of documents from the Colonial period, decided that it was never the intention of the drafters and signers of the Constitution to limit arms to the maintanance of a militia.

By ruling in this way, the Court proved that originalism will sometimes benefit the America of the 21st Century. Had it declared that it was indeed the intent of the Colonialists to limit the right to bear arms to the militia, it still would have made the correct decision if the historical facts supported the decision. But at that point it would have been up to Congress to write a new amendment that would override the "militia clause" of the Second Amendment.

Originalism is the way the Constitution is supposed to work. If history does not support the facts of life as they exist today, as the Constitution was written, then it is within the right of the people to amend the Constitution.

Originalism, besides limiting the size and scope of the federal government, will return to the States that which is not "prohibited to" them, and which "are reserved to the States respectively"; which will subsequently return to We, the People, what is not prohibited to us and is reserved to each of us respectively. [Tenth Amendment]

What is reserved to each of us respectively is sovereignty of self, otherwise called individual sovereignty. Laissez-Fairre: the Economics of Individual Sovereignty

No one on the right or the left is going to convince me to believe that being a "citizen of the United States" is better than being a "Citizen of the Several States" of the united States. It is not better to be part of a government Leviathian than to be part of a semi-autonomous region.

This does not mean an Afghani or Iraqi style autonomous tribalism--it never did, and it will not--not so long as all the people of all the "several States" remembers that there are limits to what is achievable when home rule is brought closer to "home."

The "citizens of the United States" clause of the 14th Amendment should be struck down. That would eliminate most of the Federal power over the States. We were never intended to be citizens of the "United States". The Continental Congress did not set it up that way. They deliberately limited the size and scope of the Federal government. Since Senator John McCain wants to cut funding for all but what he or Congress or someone deems is "necessary," this is the route he should take.

Of course it would take a Libertarian who is strong as Ronald Reagan to do such a thing.

I don't think McCain is even a libertarian. But he should return as much power to the States as he can without mandating, as Reagan did, that the States pick up the Federal slack.

Picking up that slack is not downsizing--it is passing it off on the States.

Give the power back to the States, don't mandate anything except to follow the remaining and existing Federal statutes (or sue the Federal government over it, the legal way of resolving disputes,) and when we all see power returning to the People, we will not only be empowered again politically as we once were; but we will be empowered psychologically as we have not been since before the Civil War.

Note: originalintent.org is one of several organizations dedicated to "Restoring the Republic...One Citizen at a Time."

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