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Healthcare in the Court

Three days of oral argument over the constitutionality of Obamacare begin Monday. C-SPAN will replay the oral argument later in the afternoons. It should be kept in mind that the reason we are even talking about the possibility of the Court overturning the law is one justice: Clarence Thomas (no relation to me, incidentally). The New Yorker gave this explanation of Thomas's key role in changing the Court last year.

Toobin writes several silly sentences but note the core of his argument, a warning to the left of his dangerous powers:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Conservatives should keep in mind that Thomas was nominated by a president not particularly beloved among conservatives--yet a man who stood by him when he came under vicious attack.

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Discussions - 32 Comments

America has been truly blessed by Clarence Thomas - hands down the best Supreme Court Justice in our history. Truly an pure constitutionalist and defender of the principals that the founders built this Great Nation, slowly being destoyed by the mentally ill left.

It has been written and reported on numerous occasions that he is the best liked Justice of all the justices that have served during his time there. Clerks and other employees at the Supreme Court building, whether they worked for Thomas or not, have proclaimed him the best Justice.

Clarence Thomas' story and rise to greatness is captured best, however, in his recent autobiography "My Grandfather's Son". Of course this should be mandatory reading for "Black Man" you so love in the White House right now.

I share your enthusiasm for Clarence Thomas, having had the privilege of meeting him a couple of times before his elevation to the U.S. Supreme Court. He is humble enough to acknowledge, however, that there have been greater justices on the Court in our history, such as John Marshall, Joseph Story and Chancellor Kent. Granted, that was a long time ago, although you are surely right if you mean for the last 100 years.

Thomas is a stalwart, although I've always thought of Scalia as the court's conservative linchpin. And no one can honestly claim that Scalia is just another rightwing hack - his vote on Hamdi v. Rumsfeld proved that he is true to his principles.

The fact is, without Roberts, Scalia, Alito and Thomas, the U.S. would be in much worse shape than it is. God bless the four of them (and, Justice Kennedy, if you are listening, we'd like you too if you'd just stop being such a loose cannon).

Scalia is a stalwart, but only to a limited extent. He is a textualist and originalist who has said both publicly and privately that there are no principles animating the U.S. Constitution. He is in the mold of Oliver Wendel Holmes, a legal positivist, who saw no limits to Congress's powers in the idea of natural rights, which he rejected.

What does the word animating mean?

1.Bring to life.
2.Give inspiration, encouragement, or renewed vigor to.

If there were principles animating the constitution then for Scalia these principles would make the constitution a living document.

Scalia goes back to the constitutional convention, he sees disagreement on a wide range of issues. He is dead right. Try reading the constitutional convention and understanding the over all statemenship of say a Ben Franklin who pulled together all the dissents and got folks to put aside disagreements in order to agree.

The constitution and most statutes are the result of mediation, negotiation and compromise. Scalia isn't going to pretend otherwise just so an academic can puff nolstagic about Natural Right. Heck if you want to depart from textualism, why not just give Rawls a big hug and see within the core of this negotiation, a reflexive equilibrium that points to justice as fairness.

Scalia teaches that if you want to pull from this some sort of secret meaning you are always going to have a living constitution.

In addition if there are animating principles, that you can divine and superimpose upon the text then you encourage sloppy drafting.

Scalia would do the opposite of justice in a particular case, if congress wrote a clear law with perverse outcomes.

Kennedy is sort of the narrow opposite of Scalia. 90% of the time or whenever the clear meaning of the statute results in a plausible outcome, he is okay with it. But Kennedy believes the constitution is animated by a spirit of Liberty and justice, and that if there is a tie between textualism and justice or freedom or liberty, or textualism otherwise results in a perverse outcome that congress could not have forseen or adequately deliberated upon "The tie goes to Freedom".

Kennedy will vote against textualism in this narrow circumstnace, while Scalia will always go with textualism and then tell congress almost literally to quit being lazy and fix the statute if it did not intend this result.

The Constitution is a product of the same political philosophy that is expressed in the Declaration of Independence, a classic natural rights document.
That fact is denied by both the far left and the far right. How is this so?

The Declaration teaches that the fundamental obligation of a just government is to secure God-given rights to life, liberty and the pursuit of happiness. It also stipulates that sovereign governments may wage war, conclude peace, contract alliances and establish commerce.

The Constitution summarizes those purposes in the Preamble and in Article I, Section 9, secures long-held rights against government intrusion (no suspension of the writ of habeas corpus, ex post facto laws or bills of attainder) and in Article IV, section 2 upholds the privileges and immunities of American citizenship.

The Declaration holds that only governments based on the consent of the governed are just. The Constitution provides for the free election of members of Congress and the President.

The Declaration denounces the British Parliament by implication for usurping the colonies' legislative powers, and the King for abusing and usurping executive power and for interfering with judicial powers. The Constitution establishes three separate and independent departments of government, each with the powers to function and to check the other branches.

The Civil War amendments are all based directly on the principles of the Declaration, with the bans on slavery, on the states' denial of the privileges and immunities of citizenship, due process of law and equal protection of the law, and unjustifiable limits on the right to vote.

To say that the Constitution is merely a text with no animating principle is tantamount to saying that the framers of the document did not share the same political philosophy. Yes, they disagreed on both important and trivial details, and had different interests to protect. But the compromises with slavery, the most massive deviation from the Declaration, were made only out of necessity, which is why Frederick Douglas later pronounced the Constitution to be a pro-freedom, anti-slavery document.

Among current Supreme Court justidces, only Clarence Thomas seems to understand these things. Time will tell about Roberts and Alito, but the evidence is already clear with Thomas. Thomas testified at his confirmation hearings that the 14th Amendment incorporated the principle of equal rights with its guarantee of equal protection the laws. He is a textualist and originalist, too, but he understands what principles inform the Constitution.

Richard, just as a point of information, where did Scalia say that there are no cultural assumptions underlying the Constitution (because, fancy talk aside, "animating principles" are just cultural assumptions). I really would like to read this interview/essay, so could you point it out to us?

I can't refer you to any interview, but I remember the reports that were made about them. When Scalia visited Chapman College in 2005, he was also a guest at a dinner held at a faculty member's home. He was asked directly about the Declaration of Independence, which he dismissed, along with the Republican platform of 1860, which was based directly upon the Declaration, as so much campaign oratory. He may speak the language of "cultural assumptions" but the questioners understood that the Declaration makes none but rather is informed by the political philosophy of natural rights.

Richard, the Declaration of Independence is not a governing document, and no state adopted it as law. The Constitution is. Of course there is a broad correspondence between the two, but legally the Constitution is the ruling document.

And, if you think about it, "animating principles" aren't worth warm spit in court unless there is law that grows out of them. Perhaps Scalia simply means that we need to focus on that which matters for the court. Since you haven't referred me to anything I really can't say.

As for natural rights/laws, beyond broad applications I've always been a little skeptical. I would argue that evolution has selected for some forms of morality, but if you are rooting your notions of natural rights in the Divine, then I would reject them as well as Scalia (if he in fact does reject "animating principles"). Seems to me "God" has 1) ordered the Hebrews to slaughter the Canaanites, 2) decreed that Islam is the final revelation, and 3) insisted on blood offering to absolve sin (in this case, Jesus' blood).

Any unbiased viewer of "Nature" quickly understands that "rights" don't come from nature - they are socially constructed. The only "right" Nature grants is the right to die. Nature is amoral, in short. Beyond the bedrock of our biological natures (and yes, there's good there along with the bad), WE determine right and wrong. Finding a yardstick outside ourselves might be useful, but I defy you to demonstrate one.

Redwald, thanks for sharing your principles or views, socially constructed or evolved or imposed by force of will, but they are simply not those of our Founding Fathers or founding documents. Thankfully, they were not built upon Darwin, Nietzsche, or postmodernists, but those of the Founders from Jefferson to Washington who embraced Judeo-Christian thought, Reformed Protestantism, classical culture, the Enlightenment, and the English and colonial tradition.

When the U.S. Code was established in 1876, the centennial of the Declaration of Independence, it placed that document at the head of the code as the first organic law of the United States. I have demonstrated the direct basis for the Constitution in the principles and grievances of the Declaration, which you have chosen to ignore. As Tony Williams reminds us, your "cultural assumptions" (a poverty-stricken expression, to be sure) are not those of the founders. Without those principles (and what is wrong with that term?), the Constitution makes no sense. Why secure rights? Why hold free elections? Why establish three branches and equip them for effective functioning? That does not come out thin air. This still leave ample room for prudence in the application of those principles, based on experience as well as theory. As Harry Jaffa once so succinctly put the matter, the Constitution without the Declaration would be brain dead. The Constitution was written to fulfill the ends set forth in the Declaration. Indeed, the Constitution would not exist were it not for the Declaration.

I will search the Internet for a Scalia interview and post it.

Well, normally I'd be a little upset that someone forced me to watch an hour-long interview that said very little about the topic at hand. Fortunately, I love hearing Scalia talk, so it was an enjoyable morning.

For those who want to watch it, the last 5 minutes are as close as the conversation gets to the point of this thread. Scalia's point? That the real genius of the Constitution is to set up a government in self-contention (separation of powers, checks and balances) - the engine upon which all our rights are supported. I agree with him.

As for "animating principles," the thing the Founders really understood was the nature of humanity. The documents they produced are deeply contradictory, just like human nature itself. It's good to allow people freedom, etc., but to guarantee that you have to tie the state's hands via separation of powers. Remember, the Bill of Rights was an afterthought (just to be sure). So, these same people who thrive under liberty will also screw it up unless you set up a structure that prevents them from doing that.

What Scalia is fighting is the tendency for "living Constitution" proponents to de-democratize our society via activist courts. And he's also against people who would de-democratize our system by insisting on "natural law" as somehow above legislation and due process of law. Moral fanaticism, I think he might call it. Our society must be governed by deliberation and law, not crusades (whether on the Left or the Right). That is the genius of our culture (here and in Britain) - a complex, self-contradictory political system that tempers the use of the political machinery.

As for the Declaration of Independence, there is an extensive debate about its role in American Law. We don't find things "UnDeclarational," however. The Constitution is the ruling blueprint, and it alone created the Federal Government. Of course parts of the Declaration have found their way into law - so what? It is a simple statement of values and reasons for rebellion. Where do those values come from? A great many places, none of which are necessarily supernatural. The British Monarchy certainly thought they were NOT self-evident, and he supposedly had God in his front pocket!

I don't think anyone seriously believes that human societies just make stuff up to rule themselves. Good conservatives understand that cultural inertia (the tried-and-true, institutionalized over time) plays a tremendous role. Scalia has said this repeatedly. But they are nonetheless socially-constructed, although that is strongly constrained by our biological nature.

I'm glad you enjoyed the interviewed. I should have realized that Scalia would not be asked by Charlie Rose about natural law, I guess.

I'm glad also that you appreciate the "real genius" of the Constitution. It's hard for me to imagine such a result without a clear and consistent political philosophy, but perhaps you subscribe to the view that what the framers produced was a "miracle." Now, if they understood humanity, what was the basis for that if not a clear and non-contradictory understanding of our strengths and weaknesses, which is ?

The Bill of Rights was not an afterthought. The framers thought that there was no need for it, as Madison made plain to Jefferson in correspondence, and Hamilton even said it might be dangerous for implying that rights not specified did not exist. Madison agreed to it because it was necessary to reconcile the opposition, and no limits were placed on the powers granted already.

Scalia has every reason to be wary of the John Rawlses of this world, for the Consitution is not consistent with Rawls' post-modern political philosophy. But the document does not exist in a vacuum. Progressives have always hated because they hate the political philosophy that informs it. If natural rights political philosophy is to be equated with, or reduced to, "moral fanaticism," then of course it should be resisted. But it is the source of the principal features of the Constitution.

You're right--there's no such thing as an "undeclarational" law. However, the formal, written Constitution does not exhaust the meaning of constitutionalism. For the supreme law of the land has generated a constitution that supports political and economic freedom with free elections and a market economy. Anything that erodes the fundamental framework is unconstitutional in that informal sense. The Americans who formed the Tea Parties understood instinctively how unconstitutional that ObamaCare was, for it struck directly at their rights to make their own decisions about their health care and insurance. They have property rights which, as Locke fulled intended, gave them a firm basis in fact, no less than in principle, to reject socialized medicine. That's certainly "worth [more than] warm spit."

I meant to end the second paragraph with "a coherent political philosophy"

Richard, I don't think we disagree as fundamentally as you seem to think. I'm not saying there's no animating philosophy behind the Constitution (it's complex, but there). I really don't think that's what Scalia is saying either. What I hear him saying is that you either allow people to govern themselves or you don't. Literally everything can be changed by legislation, although I'm sure Scalia neither expects that to happen nor would necessarily welcome it. There is no moral imperative that trumps the will of the people, for that way always leads to tyranny.

My POV on all this is simple: You either have democracy or you don't. If you do, then people will be led into error occasionally. They may well allow abortion, pot-smoking, gay marriage, and so on. They may tax themselves into oblivion and leave their own children destitute. Alas, they will pay a serious price over time for their lack of wisdom (not because they have necessarily disobeyed a higher moral law, but because our species requires a certain amount of social discipline, else our civilization falls away).

This is why I can live with both religious fundamentalists and natural law types - I often agree with their sensibilities if not in what gives rise to them.

It's good that we're (mostly) in agreement, although if you concede that people have a right to govern themselves, then you are saying that the political philosophy of the framers (and their fellow citizens largely concurred) is decisive. But self government implies not only power, rule and authority (as modern social scientists aver), but limits as well, that flow from that very authority. The Declaration sets forth the purposes of just government (equal rights and government by consent) and the Constitution puts safeguards into place to restrain the exercise of governing power, which includes, not incidentally, judicial review. In other words, the people placed limits on their own authority for the sake of preserving the republic. Permitting any form of slavery to exist is inconsistent with the fundamental principles that ground the people's sovereign power. Before Darwin, the founders understood this.

And yet that same government denied the freedom of government by consent during the Civil War (and please, don't give us that old canard that the Federal Govt. started the war to free the slaves - they started the war over secession, period). And in fact the Civil War is a prime example of what happens when "principles" are allowed to trump democracy. More than half a million dead, and a whole region that was enslaved itself for about a century.

Richard, there is no higher power or constraint on authority than the people themselves and the natural constraints put on our species by biology. All the Founders did was to set the Federal Government up at cross-purposes in order to guarantee that the will of the people (like any other will to power) would move slowly and deliberately. Why? Because both people and their elites act unwisely at times, and unfortunately for good or ill the future is always in their hands. Ironically, people must be protected from themselves, and I think the Founders implicitly understood that neither God nor "natural law" would do that for people. Did they value personal liberty and freedom of speech, religion, and so on? Of course. But those things are values, not governing principles of the universe (The universe just doesn't give a damn, and it won't save us from ourselves).

Redwald, why did the southern states secede?

Redwald, your comments demonstrate perfectly the consequences of unprincipled political action. According to you, a section of the country which held millions of people in bondage, were somehow denied their "freedom of government by consent" by a federal government that cared not at all about slavery but only about maintaining its authority. Do I have your viewpoint right? Lincoln made it clear in his Inaugural Address that the southern leaders were themselves denying the principle you say they were upholding, by refusing to accept the results of the 1860 election. I have read southern newspaper editorials written in that year, which make it clear that the writers believed that Republicans were determined to abolish their "peculiar institution." They were mistaken, or more likely, dishonest, for the Republican platform called for ending the spread of slavery, not its abolition. It was the secessionists whose alleged "principles" were 'trump[ing] democracy."

If the force motivating the American people, or any portion thereof, is nothing but their own will, then there is nothing wrong with slaveholders refusing to accept the authority of the Constitution or, for that matter, with the federal government suppressing insurrection. A clash of unprincipled wills is the recipe for anarchy, and ultimately despotism. There is no objective standard, on merely "biological" grounds, for determining whether a given political action is wise or unwise. Only adherence to true principles of just government can determine that.

The founders understood that even the best principles in the world are not self enforcing, hence, government must have coercive powers. Nevertheless, the whole system depends on both the governors and the governed being constrained by moral principles. We are governed by natural law whether we admit it or not. As Lincoln said, there is a moral economy in the universe, and good and bad actions beget similard responses. He made it clear in his Second Inaugural Address that the evils of slavery could not forever be ignored, even as Jefferson said the same thing in his Notes on the State of Virginia (1781). The same is true today of abortion. The nation paid a heavy price for the sin of slavery. May we be spared the same fate for the (50 million deaths) abortion holocaust!

I have many friends on the Left who would love to secede from conservative America. They live all over the country. How do they divide themselves away from those of us who will not allow them to transform America from a constitutional republic to the kind of government they want, a democratic bureaucracy or something? (I really cannot quite figure out what they want.)

Talk about things like natural and moral economy just makes them laugh or get angry. I tell them we are stuck with each other, but that doesn't help. We are holding them back from an Utopia of free sex with morality, villages raising children, corporations who operate without profit motives, abundant crops raised in pesticide and GMO-free farms, and school systems where all children are above average. ( I know I am missing things in the list and apologize.) How dare we? They don't believe we have principles, but that we are merely selfish.

Kate and Richard:

The answer to why the South seceded from the Union is: it doesn't matter. The fact that there was nothing in the Constitutional contract to prevent them obviates the question. My point was that good ol' Abe did not muster troops to free the slaves, he did so to preserve the Union. Freeing the slaves was an afterthought to justify the bloody mess.

Richard, actually the Civil War supports my arguments against moral absolutism. According to your "wooly thinking" (thanks, Pete - hadn't seen that phrase in awhile) we should take up arms every time some other group of people violates our sense of right and wrong. Unfortunately for you, our government has NEVER operated on that principle (either before or after the CW). This same archly-principled Federal government continued to slaughter Native Americans after they had freed the slaves, shoving the former into reservations and condemning them to a form of subservience every bit as ruinous as chattel slavery. And don't get me started on the tenements in New York City!

You see, Richard, the problem with moral absolutism is that no group of people has ever applied it consistently, but they always seem to manage a nice body-count (e.g., Spanish Inquisition, Islamic Jihad, Witch hysteria, Naziism, Communism, abolitionism, prohibition). Scalia is right to fear governance by "values." Those values will out, of course, but we should allow them to do so ONLY through legislation and other forms of deliberation. Of course, this is no guarantee that we'll prevent moral crusaders from wreaking havoc, but it gives us our best chance to do so.

Unfortunately, when someone like me (or Scalia) says things like this, moral crusaders immediately scream that we support slavery, or aren't good conservatives/liberals, etc., yada yada yada. But what we are saying is fundamental and reasonable: Anyone who will brook no denial of his/her true vision is probably a fanatic who, if left to his/her own devices, will undermine democracy. Our system IS DESIGNED to check such people and their thoughtless insistence that the world works as they think it should.

It is impossible, of course, to support a position in opposition to "moral absolutism" without invoking at least the semblance of moral authority. You are as much a "moral crusader" as the folks you righteously denounce. On the other hand, moderation is as indispensable to upholding morality as clear-headed thinking that is critical of specious moral reasoning.

It is hardly a secret that LIncoln did not advocate the abolition of slavery, but it is no mark against him for insisting only on what, at the beginning of the war, was possible and desirable, which was to take a firm stand against the spread of slavery. But neither the abolititionists nor the slave holders were able to make distinctions between extreme and moderate positions--just as drunkards cannot distinguish between moderate drinkers and tee-totalers. But freeing slaves was not an afterthought, but an object to which America had long been dedicated, however far into the future it seemed. But the war changed everything, for those kept as slaves were an asset to the South and the continued existence of slavery was an outrage to many in the North, who had sacrificed too much to perpetuate human bondage any longer.

Of course, one should not "take up arms" any tme someone does something of which one disapproves, but massive rebellion against the Constitution could hardly be ignored. As Lincoln pointed out in his First Inaugural, the North and South could not avoid each other, and there was no way the aggressive slavery-expansion policies of the South could be ignored. I take it that you fault the "archly-principled Federal government" for inconsistency for warring against Indians for no justifiable reason, but on your grounds what can be wrong with that? It is a tragedy that the government could not effectively rerstrain many (not all) citizens' animus against Indians, but neither can we say that the existence of that problem necessarily meant that there was a solution. Before the war, Lincoln confessed he did not know what to do about slavery, but he quickly "th[ought] anew and act[ed] anew" when the war was forced upon the nation.

Your categories of moral absolutists curiously lumps disparate groups together and omits others. Granted, there was moral fervor in Naziism, but hardly any genuine moral principle. And like the Communists, Nazis rejected the combination of classical and biblical morality that grounded western civilization. Indeed, atheists like Lenin, Stalin and Mao killed millions more than warring Christians ever did. To the extent the American Constitution (and constitution) checks fanaticism, it is because of the deeply ingrained principle in the hearts and minds of most citizens that all men are created in their rights to life, liberty and the pursuit of happiness, the remarkable blending of classical and biblical morality, each restraining the problemmatic characteristics of the other.

Resort to condescending speech is the best evidence of one playing the moral trump card. There is no escaping morality; the only question is whether or not we have it right. We can be de-moralized by either fanatics or relativists.. The truly moderate position consists in holding firmly to moral principles while exercising prudence in their application.

Richard, once again you've missed the point. The Founders set up a STRUCTURE to moderate "animating principle." Nasty governments all over the world have their own "bill of rights," (aka "animating priniciples), but they don't honor them. Scalia is right to say that our checks and balances are the true genius of our system. Why? Because we so seldom live up to our high-sounding "principles." Indeed, some argue that the insistence on individual rights has led to a giant, centralized government. After all, isn't "all men are created equal" the "animating principle" behind all kinds of Federal folly such as affirmative action, progressive taxation, porous borders, and Obamacare? It has been the "protection" of the "individual" that has led us to the current sorry state of affairs.

The genius of the Founders was to protect us from the misuse of centralized government, period. The system they set up to accomplish that has far less to do with "principle" and far more to do with a solid understanding of the animals we are.

As for your claim that I lump monsters in with heroes, nonsense. Other than Stalin (who may well have been just another sociopath), all bloodstained leaders think they are on the side of the angels. Hitler was forging a "pure" homeland for his people. Mao was founding a more just nation. The Inquisitors were serving God, as are the jihadis (at least in their own minds). All of them thought that violence to force others to live as they thought fitting was just fine. I put Abe in their company - if the shoe fits.

Your argument that it takes values to argue against values is amusing, and reminds me of post-modernists (EVERYTHING is power, or gender,or race, or text -- blah blah blah). Please try to understand the point. Scalia and I aren't arguing against values in politics. We are arguing that it is best to legislatively torture those who would impose values on the populace. Making the process of value-imposition difficult is our best defense against folly and fanaticism (even though it actually means that no one every gets everything they wanted from the political system). Democracy is frustration, and that's a good thing.

Redwald, your condescension rivals that of the monsters you are warning us against. Your point of view, to borrow a phrase from Harry Jaffa in another context, is "a cosmic compendium of the all the errors of [relativist] thought." I've concluded that you are applying the denial of intelligent design of the universe to man's inventions. The Constitution, you are implicitly saying, had no intelligent designer. The framers were a bunch of capable workmen but no thinkers who, by compromising on all sorts of things but certainly acting from no fixed design (good bye Virginia Plan), somehow conjured up a constitution. And precisely because they put no real thought into it, it works wonderfully! Silly me, I thought that even (especially) craftsmen followed a blueprint which, however modified, was the basis for the finished product. The broad blueprint for the Constitution was the Declaration of Independence, which I have demonstrably shown was followed in general outline by the framers of the Constitution. They were not Darwinists but convinced advocates of the political philosophy of natural rights. You, on the other hand, are conjuring a "god of the machine" which works of its accord (doubtless "adapting" like biological organisms to the environment).

You make the mistake of the followers of John C. Calhoun that equality is a self-evident lie, and the cause of liberal follies, but the liberals explicitly--and I do mean explicitly--repudiate equal rights, beginning with Woodrow Wilson, himself a southerner who segregated our armed forces by race. No less do liberals repudiate the governmental obligation to protect the rights of individuals, having embraced the corrupt notion that only groups--blacks, women, homosexuals--have rights, with the corollary that groups that largely enjoyed legal rights are to be deprived of them as a necessary condition of securing the rights of historically victimized groups.

Liberals having so mucked up the public understanding of the Constitution, it is necessary for us, just as it was for Lincoln--the man you unjustly lump together with Hitler, Stalin and Mao--to recur to the principles which inform the Constitution. You evidently can't grasp the idea that even a machine has a principle of operation which, when grasped, enables it to be invented, maintained and repaired.

The liberals' embrace of race, class and gender constitutes a repudiation of equal rights for individuals, which is fully consistent with the group rights of southern slaveholders, master races and historically ordained classes, and other such dangerous nonsense.

You are right that "values" are the problem, but not in the way that you think. The term is an invention of 19th century German philosophers who denied the existence of real goods and substituted the mere subjective claim that something is good. Millions use the term without understanding that there is nothing objective about it. No judge has a right to impose his "values" on a party to a case, but he has a duty to uphold the moral principles enshrined in the law, both organic and statutory. That is the essence of impartiality. Stripping the Constitution of any moral or even political content is a denial of reality.

Richard, I am having real trouble understanding exactly what your point is. Of course the Constitution was "designed" - who the hell ever said otherwise? Was it the very embodiment of certain principles? Oh, some very basic ones, such as preventing centralized tyranny, but it does not impose a view of God, nor equality, nor any of the other things you seem to think it does. It does strive to give the people a measure of freedom from certain governmental abuses, but the only thing that really secures those freedoms is divided government (Scalia's point). At its very core, the Constitution sets up a government that handicaps itself, and that was undoubtedly by design. States, although somewhat constrained by certain of the Bill of Rights, are not nearly so straight-jacketed. Why? Because it was CENTRAL authority the Founders feared. The Constitution was a creation of the States, after all.

As for Abe Lincoln, the Constitution neither justified his aggression toward the seceding States nor prevented them from seceding. Oh, I've seen all the arguments pro and con (Webster for instance), but the plain fact is nothing forbade secession in the actual contract. Essentially, Abe took up arms against a people to deny them the right of self-governance, and only later pointed to their sin of slavery to justify the blood-letting. Not very democratic I'm afraid.

Instead of going back and forth like this, why don't you just tell me what you think these "animating principles" are, and why they are critical to a discussion of what is and is not in the Constitution?

I'm not surprised, really, that you have trouble understanding what I'm trying to teach you. Your ignorance of both political philosophy and history are major obstacles. So "who the hell" denied that the Constitution was a product of (intelligent?) design? You did. Redwald, pay attention: there is an intrinsic connection between political principles and constitutional construction. Why are there three independent and powerful departments of government? Why does the Constitution secure rights against governmental oppression? Why are there free elections? You're right that they sought to avoid centralized tyranny, but in the circumstances of 1787 the serious problem was weakness in the center and inordinate power in the states. This constitutional government has the power, as the Declaration prescribed, "to wage war, conclude peace, contract alliances, establish commerce and to do all other things which independent states may of right do." We were largely secure against undue and unwarranted centralization beyond those core functions until the Progressives came to power.

As to God and equality, consider that the framers concluded with a reference to the "year of our Lord 1787," which was not mere conventional usage and they could have left it out but they did not. The constitutions of all but two of our states explicitly recognize God or the Supreme Being in their preambles. Equality ungirds all guarantees of individual liberty, as ALL individuals possess the same rights. Even the sections protecting slavery refer to those held in bondage as "persons," not slaves. Frederick Douglass noticed that language, which was consistent with the Constitution when it was amended to prohibit slavery, protect equal civil rights and secure equal voting rights.

Lincoln had long since made clear in his senate and presidential campaigns his objection to slavery, but took the moderate stance which both abolitionists and slave holders rejected, viz., slavery must not be allowed to expand further but left alone where it already existed. He tried to avert war with this policy but the southern extremists refused to listen. And, come now, how can you defend a policy of so-called self government by those who hold their fellow man in chains? That's the reason you don't want to admit that the principle of equal rights is at the heart of the Constitution.

The Constitution was the foundation for LIncoln's statesmanship as he scrupulously respected the existing its protections for slavery where it existed, even to the point of supporting an explicit constitutional amendment to that end. He advocated a year into his term the gradual, compensated emancipation of the slaves. He issued the Emancipation Proclamation only as a war measure. There never was a more scrupulous constitutionalist that Lincoln. Your fire-breathing passion for the lost rebel cause seethes beneath your ostensible indifference to the Constitution's principles.

Please return to previous postings for what the Constitution's principles are. Ignoring points you can't abide is no way to learn.

"the existing protections" in the second line of the penultimate paragraph.

Ok, you've slipped from strident to insulting. This will be my last post.

1) I'm better educated than you are, and I know this history better than you do. And I don't have to publish in vanity presses.

2) A generalized belief in a higher power is no big deal, and it provides no real governing principles. As for belief in the individual liberty, apparently they didn't believe it fervently enough to discontinue slavery or allow women to vote. Your arguments are nonsensical.

3) Lincoln's first priority was and remained the preservation of the Union (regardless of what people actually wanted). Everything you said about his willingness to inscribe slavery into the Constitution proves it (and not, as you claim, that he was scrupulous about the Constitution). Oh sure, he hated slavery, and his rhetoric and subsequent election is what convinced many Southerns that leaving the Union was their best option for representative government. They had the right to make that decision, by law AND by your vaunted "animating principles."

4) As for being a staunch defender of the constitution, one wonders why he shut down newspapers and suspended habeas corpus (for his own citizens, not for Southerners). As for his morality, who was it that set Sherman on the women and children of the South in order to win the 1864 election? You may want to remember him well, but your hero-worship is misplaced.

You are out of your league, Richard. You should just keep writing lame op-eds and enjoy your retirement.

As Lincoln observed, there is a moral economy in the universe. You have been insulting me from the beginning of this discussion, and once someone gives you a taste of your own medicine you scream like a stuck pig! You are blinded by your own passions. You ignore every bit of evidence that tells against your position and simply repeat your tired refrain. You are arguing from illegitimate authority rather than the truth. You are a lateral reversal of a liberal, who shares with you a contempt for the founding principles and ultimately the Constitution, which your southern brethren showed their contempt for, just as you do now. That legacy of slavery, racism and bigotry is all yours!

I imagine that your promise to make this your last posting is about as sure as Nixon's promise that his press conference after his defeat for governor of California was his last.

You guys had a pretty good discussion. But maybe I can agree with you:

"To say that the Constitution is merely a text with no animating principle is tantamount to saying that the framers of the document did not share the same political philosophy."

Absolutely. That is what I am saying.

I agree that they consented to the document they produced, and folks can sit down and be reasonable and agree on procedures. But neither the constitution, nor any bill, or statute is necessarily the product of the same political philosophy.

Among Democrats and Republicans alike there are differences in political philosophy. What they actually agree upon is the reconciliation provisions.

You could also look at how a bill becomes law.

Scalia is basically saying, quit trying to win on a political philosophy via the courts, that you couldn't win in negotiations/legistlative process.

Two parties to a contract never have to agree on the level of political philosophy. They just have to agree to terms. The terms in the four corners of the document is the foundational basis of textualism.

The downside to textualism of course is that if you lack barganing power you are going to get ranched(or taken to the wood shed!)

Textualism is only just among equals. Do republicans and democrats sometimes make laws which disadvantage certain groups? Absolutely.

Here again you have constitutional prohibitions on this form of contract.

"Frederick Douglas later pronounced the Constitution to be a pro-freedom, anti-slavery document."

It really is in this time period after Lincoln that the DI really came into vogue as a standard which should animate the constitution. Interesting that you keep mentioning Jaffa. This was also a high point for equality in recognition of the freedom to contract. The Lockeanism of the DI around this time also led to the Declaration of Sentiments.

Fredrick Douglas was one of the few who supported it, and it's DI political philosophy. Still the political philosophy of Senneca Falls was not shared by a majority.

Basically saying; This textualism is a raw deal because our barganning power is negligible!

Within the four corners of the document we are screwed, because we cannot contract, we cannot consent, and our husbands are held liable for our crimes/debts.

This I suppose makes you a sort of 1848-1868 progressive.

This Lockeanism by turns then led to the Judicial Activism of Lochner.

But even Lochner with its freedom of contract, simply plunges you back into textualism. Striking down labor laws created by representatives of New York for the balance of power necessary for the promotion of the persuit of happiness.

What a textualist might say, is that the legistlative process is where contracting about what the law is occurs. Neither the democrats nor the republicans necessarily agree on political philosophy or public policy, so instead of animateing the law with some sort of principle, we are just going to look at what the parties agreed upon. i.e. what the law is.

Constitutional Law in some sense is the law of contract for the legistlature. Can the legistlature and president/gov. enter into a contract to make this law?

The constitution is supreme, only because this contract determines what can be contracted for. But the constitutional convention that produced the contract known as the Constitution, is not that different from any other deliberative body. Deliberative bodies contain people who do not share the same fundamental political philosophy. So when these produce a law, the meaning of the law should be restricted to the wording of the law these folks have managed to negotiate.

A judge who steps in and interprets the law, by giving effect to some sort of political philosophy outside the four corners of the text, has simply mannaged to give a victory to a side who was unable to effectuate this result via negotiation/persuation or reconciliation.

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