Friday, November 14, 2008

Originalism and Obama

Ontology distinguishes between entities, draws distinctions in their qualities that set them apart from other entities, and qualifies the relationships of those qualities to the qualities of other entities. Entities are defined by their qualities, e.g., the primary distinquishing characteristic of "man" is not his opposable thumb, nor his linquistic ability, since chimps have rudimentary language, and elepephant, whales and other species may also have rudimentary language. The distinguishing characteristic of "man" is "rational animal."

So when I read the November 8 edition of American Thinker I knew the subject was drawing the lines of distinction between the Constitution before and after the administration of FDR, and comparing it to the coming administration of Barak Obama:

"Theodore Lowi, a political science eminence at Cornell University, years ago drew a bead on what was wrong with the American polity. In his The End of Liberalism: The Second Republic of the United States, he claimed that the Founder's constitution of 1787 had been surreptitiously replaced with a new one by the FDR administration, and no one had actually noticed it for seventy-plus years."

The idea that no one had noticed it is so badly wrong I am surprised Lowi's editors didn't stop him from saying it.

In the blog "No Exit," Fitz Brundage wrote in Opposition to the New Deal that, "the policies of [FDR's] administration inevitably aroused opposition. The evolution of Roosevelt’s New Deal cannot be understood apart from the opposition that it aroused. [A] coalition of conservative opponents emerged and systematically curtailed the most ambitious plans of the New Deal. [ ] By early 1935, the New Deal legislation of the previous two years had aroused growing voices of criticism on the left and right of the political spectrum, and by several important Supreme Court rulings."

"Alexander Hamilton, in Federalist No. 84, argued against a 'Bill of Rights,' asserting that ratification of the Constitution did not mean the American people were surrendering their rights..."

Yet it seems as if we have done just that. Harold Kildow argues in the American Thinker about the differences between post-FDR, and the incoming administration of Barak Obama. Kildow says the Constitution post FDR was "Constitution 2.0" and now we may be in for "Constitution 3.0" without anyone ever voting to change the Constitution.

As a matter of fact, it has been an accepted fact of American politics since the publication of Emmerich de Vattel's text, "The Law of Nations" that the legislature does not have the power to change a constitution:

"American writers quoted {The Law of Nations} on constitutional law, almost immediately after the book's publication. [ ] Boston revolutionary leader Samuel Adams wrote in 1772, 'Vattel tells us plainly and without hesitation, that "the supreme legislative cannot change the constitution," that "their authority does not extend so far," and "that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them." "

This is the reason that Originalism, or original intent reading, of the Constitution is necessary. It is the only objective means of determining the qualities of the written law and the relationships between those qualities and what the Framers intented.

"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. [It is] a formalist theory of law and a corollary of textualism. Today, it is [ ] most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork. However, some liberals, such as Justice Hugo Black and Akhil Amar have also subscribed to the theory." Wikipedia

The coming administration of Obama will do nothing toward Originalism, and may reverse the the idea, depending on whom Obama is able to nominate to the Supreme Court and get approved in the Democrat-controlled Congress.

Modern liberals and many conservatives believe the contrary of Originalsm. It is called the Living Constitution, and is a concept which proposes the Constitution should be interpreted to evolve with the society that implements it.

The very fact that Originalism is disavowed by American liberals, democrats and others, as the proper method of interpreting the Constitution, and their reasons for that disavowal, is proof positive that we are indeed headed for Constitution 3.0, and the only people taking note of it are Originalists. The rest of the nation sees nothing wrong in impressing our own ideas "between the lines," as it were, of a document meant to be taken literally: Change it if you don't like it. The Founders never said ignore it and do what you will by pretending we meant something we didn't mean at all and wouldn't approve of if we were asked.

But "Originalism 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 which they provided was to either nullify by Amendment where necessary, or alter by legislation where allowed, the intention of their words."

If Obama is as Marxist as he appears to be when he speaks and has his positions published, e.g., when he talks of "windfall profits," and "redistributing" profits from the capitalists to the consumers, he has no intention of Originalism in his political philosophy (except perhaps where it may serve his own policies; we shall have to wait to see.)

Neither Obama nor the Democrats are liberals in the originalist meaning of the word. The drafters and signers of the Declaration were such liberals, formed from Renaisssaince thinking, because the original meaning if not definition of "liberal" was "secular liberation of reason."

Liberating reason from the constrictions of secular law as written, in order to corrupt and destroy it, rather than changing it by the methods built in to it in order not to destroy it, is not liberalism; it is at time collectivist, at times fascist, and at times anti-reason.

But ontologically it is not Originalism, the integrity of changing the Constitution by the means provided within that document. Any other means is sabotage. It is the breaking of the oath taken by every public servant to uphold the Constitution, and it should be punishable by law. The fact that liberals scoffed--even laughed, as Joe Biden did--at the idea of the Marxism of Obama's rhetoric tells us that we are indeed getting ready for the Constitution 3.0, through subterfuge, through reading it as "living", and through previous abuses of it that were gotten away with.

The fact that Obama is an accomplished Constitutional law professor only makes the outcome of his administration darker for the liberty given us by the Minutemen and others who gave their lives in the war for freedom, the war they afterward declared was to "secure the Blessings of Liberty upon ourselves and our Posterity."

Their posterity have let them down.

Congress Shall Make No Law...Prohibiting the Free Exercise of Religion: First Amendment

proposition that Muslims have special privileges in American society, to which
others are not privy, is now enshrined in precedent."

But it also may make no law establishing a religion, and giving to Muslims what is not given to Christians, Jews, and the faithful of other religions --including to Atheists who are protected under precedents set in courts --is the establishment of the rites of religion. Click on the blue sentence for more.

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