Monday, January 5, 2009

Pragmatic Politics vs. Originalism

Originalism Protects Individual Sovereignty

Last Saturday I wrote that the politics of Original Intent that were practiced by Senator Barry Goldwater in his race for the Republican nomination of 1964, are not the politics of Washington as we know it today. Originalism is not respected by those who see necessity in specific government programs which defy strict Constitutionalism.

The politics of pragmatism has become the standard, practiced by both Republicans and Democrats. Pragmatic politics sees necessity as the trump card, whether or not American supreme law supports it. I do not deny that many things are "necessary," and can be implemented by governments without reverting to any form of collectivism.

But in order to implement necessary policies and programs that are pragmatic rather than Constitutional, the Constitution must be changed. That is what the Founders said. That is the mechanism the Founders gave us in the Law. What is so hard for pragmatists to understand about that mechanism?

Bush the Pragmatic decided an Iraq without Saddam Hussein would be better than a Middle East that remained inclusive of him. He started an unnecessary war, a divisive war, a war based on perfectly incompetent intelligence reports.

Bush the Pragmatic decided that limiting the individual sovereignty of Americans through the coercive, and therefor mis-named "Patriot Act", was a better means of advancing the "common" good rather than the Constitutionally provided-for "individual" good.

("We, the People," meant specifically "We, the Individuals collectively called 'the People.'" Among others of the Founders who wrote or spoke of such individual sovereignty, we have these words of Jefferson:

("We think experience has proved it safer for the mass of individuals composing the society [i.e., all the individuals collectively] to reserve to themselves personally the exercise of all rightful powers to which they are competent and to delegate those to which they are not competent to deputies named and removable for unfaithful conduct by themselves immediately." --Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816.)

Bush the Pragmatic decided it was better to save the "Barney Frank Democrats" who led us down this thorn-and-shard-laden housing financing debacle. That debacle led to the "me too" attitude of banks that had been allowed to become "too big to allow to fail"; the hands-out attitude of the Motor City who couldn't keep up with the smarter looking and better selling cars made by the Asians and Europeans. There is a one year waiting list in the U.S. for the Nano Car manufactured by the Indian company the Tata Group.

And of course, there are the "me too hands" held out for Federal funding by the states and cities across America.

Bush the Pragmatic, who never opted for the "redistribution of wealth", opened the door for the wealth redistributing Obama the Pragmatic.

It appears that many local governments are going to get their palms greased.

It is, of course, pragmatic to destroy the capital value upon which this nation was built, and to destroy that very wealth by taking from those who have it and giving it to those who do not--so that those who do not get some of it whether or not they know how to create more wealth with it so it can be redistributed again; or whether they merely know how to spend it before coming looking for more to be redistributed in their direction.

Either way, pragmatic redistribution "stimulates" the economy, like a cattle prod "stimulates" a cow, with a sting worse than Muhammad Ali's fist to your face. The purpose of the sub-prime lending was to make the Democrats look good through the stimulation of the economy by lending. The "sting" was that those to whom sub-prime loans were given could not afford them or they would not have needed sub-prime rates.

Though Obama stated that his team members share his "'pragmatism about the use of power' in foreign policy," Dr. Tara Smith, speaking for the Ayn Rand Center for Individual Rights, said Democratics and Republican presidents disagree vehemently about foreign policy and "all manner of moral and political issues, [and] that the way forward is always through moderation and compromise. [But] pragmatism, from either the Left or the Right, is inherently self-destructive and a threat to Americans." [emphasis added] CapMag.Com

What makes for pragmatic politics? In these times when non-Originalism is the order of the day, "anything that goes" and which seems to fill a need is pragmatic. Non-Originalism is the idea that no written Constitution can anticipate all the methods by which government could use--after the law was written--to oppress people, so it is sometimes necessary for judges to make decisions based on other laws with similar intents, and the precedents set by interpretation of those laws.

Judge Robert Bork was nominated to the Supreme Court by Ronald Reagan. Bork is a an Originalist. His nomination was scuttled by Democrats who didn't like his former involvement in Nixon's "Saturday Night Massacre," nor by some of his controversial opinons.

(Neither do I. But, putting that aside,) his case, in part, for Originalism is solid as rock: "If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: Law....

"This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones." [citation]

"Pragmatism is about how well things work in practice, not how they should work in theory. [But] we present evidence that non-originalist judicial decision making has, in fact, done a good job of enhancing social welfare, as measured by popular ap-proval of the Court’s decisions. " [emphais added] THERE IS NOTHING PRAGMATIC ABOUT ORIGINALISM David S. Law & David McGowan

This "good job" measurement is pragmatism defined. But Goldwater, the Conservative's hero of Heros said this in the long, honorable tradition of Originalism:

"I will not attempt to discover whether legislation is 'needed' before I have first determined whether it is constitutionally permissible." [emphasis added] Barry Goldwater Quotes

This policy is the measurement of someone who believes in a nation of laws, as Bork spoke about, not of a nation of men who proceed to find things that are necessary--as the bailouts may have been, but which are un-Constitutional.
Respecting the Constitutional individual sovereignty of each member of "We, the People" would preclude taking from he who has in order to give to he who has not. Such redistribution is neither in the letter of the law, nor in the spirit of the law. Pragmatism is not about law; it about results irrespective of law.

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