Tenther Tom Emmer meet Tenther Tom Jefferson

Emmer has sponsored a bill that would empower Minnesota officials to each independently decide whether new federal laws and mandates exceed the constitutional power of Congress.
MinnPost photo by Terry Gydesen
Emmer has sponsored a bill that would empower Minnesota officials to each independently decide whether new federal laws and mandates exceed the constitutional power of Congress.

Tentherism takes several forms, ranging from a conservative talking point to threats of nullification and ultimately secession. Yes, secession.

If you think the civil war talk is crazy, did you notice that a sitting congressman, who is a candidate for governor of Tennessee, said last week that he hoped the next couple of election cycles would come out right “so that states are not forced to consider separation from this government?”

Hard to take that as anything less than an assertion that states have a right to secede and that if things keep going the way they are going, some states might exercise that right.

Monday that Tennessee guv candidate, U.S. Rep. Zach Wamp, said that if he is elected Tennessee will not secede from the union, although there was no takeback of the assertion that it could.

Zach Wamp, meet Thomas Jefferson.
Americans as important as Thomas Jefferson have strayed down this path. Jefferson, the author of the 1798-99 Kentucky resolutions that arose from the crisis over the Alien and Sedition Acts, put a threat of secession into one draft of the Kentucky resolutions. It came out before that draft was submitted to the Kentucky Legislature, but that draft did contain an assertion that states have the right to reject federal laws that the state thinks overstep the proper limits of federal authority.

Tom Jefferson, meet Tom Emmer.
Tom Emmer, the Republican endorsee for governor of Minnesota, has sponsored two bills asserting the right of Minnesota to reject federal laws and mandates from applying here, especially if Minnesota believes the feds have overstepped their authority under the Constitution and under the 10th Amendment.

The more I obsess on it, the more convinced I am that Tentherism is the key to the biggest ideological divide in American political culture. It takes the perpetual argument about how big the government should be and how much it should do, and attaches to the adoration of the founders and the framers and the belief in the Constitution as our secular/sacred text. For Minnesotans, understanding Tentherism is also vital to understanding Bachmannism and Emmerism.

Thomas Jefferson
Rembrandt Peale
Thomas Jefferson

If you’ve read the previous entries in Taking Tentherism Seriously, feel free to skip down to the subhead “new stuff starts here.” If you could benefit from a recap:

Tentherism is a term for small (federal) government conservatism. The 10th  Amendment to the U.S. Constitution limits the powers of the federal government to those delegated by the Constitution itself. The explicitly enumerated areas in which Congress is empowered to legislate are really very few — really, very, few — mostly enumerated in Article I, Section 8. Tenthers at least claim to take the list very seriously and argue that a great many things that the feds do — at least when they are done under Democrats — exceed the constitutional powers of the Congress.

Michele Bachmann, who now consistently uses the term “Constitutional conservative” to describe herself, has said that the Obama health care bill is unconstitutional because the Constitution doesn’t empower Congress to take over the health care system. She’s right, at least in the sense that health care is not mentioned in the Constitution. So a strict 10th Amendment constructionist would say that the feds have no business doing anything in the field of health care. Rep. Bachmann has so far been unwilling to answer repeated questions about whether pre-Obama health federal care programs — Medicare for example — are likewise unconstitutional.

Emmer has sponsored a bill that would empower Minnesota officials (the governor and the leaders of the two houses of the Legislature) to each independently decide whether new federal laws and mandates exceed the constitutional power of Congress. If any one of the three thinks the feds have overreached, the mandate is blocked by them from application in Minnesota. Emmer, who is an attorney (as is Bachmann), told me that he doesn’t know whether such a state law is constitutional, but he is so frustrated by the growth of federal power that he is very motivated to push back and at least “have the conversation.”  

So, begging your indulgence in advance, I will, as I had previously threatened, obsess on taking Tentherism seriously and seeking to understand it in its historical and constitutional contexts. The historical context is especially important because of another important tenet of 21st century American conservatism, namely the belief that the words in the U.S. Constitution must be understood the way they were originally understood, meaning by those who wrote them or otherwise participated in the event of their framing and ratification. You could call this “Scalia-ism.”

So, with apologies for the long-winded recap, we are exploring the original understanding of the 10th Amendment itself. In the previous piece in this occasional series, I told the tale of the Alien and Sedition Acts, adopted in 1798 — when many of the participants in the framing and ratification of the Constitution were serving in Congress. These laws — under which newspapers were closed and their editors jailed for the crime of criticizing the government — blatantly violated the First Amendment guarantees of freedom of speech and press. In short, the Federalists in 1798 exercised powers they should not have possessed under any reasonable reading of the Constitution, an awkward fact for those who would like to believe that the original understanding of the 10th Amendment was a serious and literal limitation on what the feds could do.

The next installment is potentially a happier tale for the righty view, although it has its problems.

The new stuff starts here
Two very big names from the founding and framing generation — Jefferson and James Madison — certainly did feel that the Alien and Sedition Acts were unconstitutional, and featured the 10th Amendment prominently in their arguments along those lines.

They expressed those views in what became known as the Virginia and Kentucky Resolutions. The documents were written anonymously. Jefferson, who was vice president of the United States at the time and was running for president against the incumbent, John Adams, acknowledged years later that  he wrote the two resolutions adopted by the Kentucky Legislature in 1798 and ’99. Madison drafted the one adopted by Virginia in ’98.

In the resolutions, they denounced the Alien and Sedition Acts as an assertion of federal authority beyond the boundaries of the Constitution’s delegation of powers.

The Jefferson-drafted Kentucky resolutions specified that the Constitution authorized the federal government to make criminal law in only a few areas, specifically treason, counterfeiting, piracy on the high seas, and offenses against the law of nations. The government is not authorized to deal with any other categories of criminal activity. (If we took Tentherism this far, we would not have federal criminal laws nor law enforcement agencies dealing with drugs, for example.)

Furthermore, Jefferson noted. In the Kentucky Resolution:

“One of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.”

This is the part of the story that should be heartening to modern day Tenthers. Jefferson is certainly one of the demigods of the founding era, although he did not play a role in the drafting of the Constitution.

Father of the Constitution
Madison, while a slightly less celebrated member of the founding generation, is justifiably known as the “Father of the Constitution.” Not only did he play a leading role in the organizing of the 1787 Constitutional Convention, he took the most active role in the drafting itself and kept the notes that are the greatest guide to the Philadelphia proceedings. His work extended to authorship (also anonymously) of many of the famed Federalist Papers, which signified the key role that he played right through the campaign for ratification of the Constitution.

But wait, there’s more. As the leading member of the House of Representatives in First Congress, Madison drafted and pushed through the first 10 amendments, which have come to be known unofficially as the Bill of Rights. The last of these was, of course, Amendment 10, stating that the federal government possessed only those powers delegated to it.

No one , not even the Father of the Constitution, gets to be the single authoritative guide to the “original understanding” of the provisions in the charter. It’s too complicated for that. But if anyone did, it would be Madison.  So if Tenthers have Madison on their side of the argument about the correct meaning of the 10th, it’s a big deal.

In that context I have to note a couple of inconvenient facts for the Tenthers who use of Madison as their champion. Tentherism and the 10th are deeply rooted in states’ rights. Madison, during the drafting of the Constitution, felt very, very strongly that the federal government should have veto power over any and all state laws. This is kinda the opposite of what Emmer is proposing, which would sort of give states the power to block federal laws.

In the end, though, no such power was adopted, so the point is relevant only to understanding that Madison, in 1787, was actually an advocate of a more powerful federal government. Small government conservatives, who like to portray the framers as likewise small-government conservative, tend to get this bit backward. The framers, including Madison, came together in Philadelphia in 1787 to create a much more power federal government than the one that they already had under the Articles of Confederation. And they did. The idea that the framers were fearful of federal power is roughly backward, but you nonetheless hear it all the time.

Secondly, Tenthers should tread carefully around the claim of Madison as the champion of their favorite amendment. At the Philadelphia Convention, Madison opposed the idea of a Bill of Rights being added to the Constitution, including the idea of a statement that the federal government had only those rights delegated. He ended up being the chief author of the Bill of Rights, but only as a result of a political compromise to ensure ratification of the Constitution. He was less than enthusiastic about the deal.

Nonetheless, the 10th Amendment was in place in 1798. The Alien and Sedition Acts (unconstitutional in soooo many ways) were nonetheless adopted. And Jefferson and Madison denounced the bills, citing the 10th in the same way that Bachmann cites it today against ObamaCare.

But there are a couple of other problems. One, as I mentioned above, Jefferson flirted with secessionism when drafting the Kentucky resolutions and he did cross the line into nullificationism.

Nullificationism
Nullificationism (a word I just made up, so far as a I know) refers to the argument that states nullify federal statutes.  Here, from Jefferson’s second Kentucky resolution, is the grandiloquent summary of the above-summarized principle:

“If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence:

“That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers:

“That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:

“That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal:

“That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.”

Translation
To summarize, in case you had any trouble with the language, Jefferson argues that the states entered the constitutional scheme with the understanding that they had made a limited and specific grant of power to the feds, and as long as the feds stay within the limits of its delegated authority, the states will submit to federal authority. But if the feds appoint themselves as the arbiters of the limits of federal authority, then state governments will disappear into one general despotic federal government over the whole country.

Perhaps, from the point of view of modern-day Tenthers, this is what has happened or is in increasing danger of happening.

But, knowing that I’ve gone on too long already, I’ll note two last things.

The arguments of 1798-99 were part of the colossal campaign of 1800. Jefferson’s party, then called the Democratic Republicans, succeeded in portraying the Federalist Party of John Adams as dangerously hungry for power and dangerously unwilling to respect the agreed upon division of state and federal responsibilities. They won the argument and they won the election with Jefferson becoming president and Madison his secretary of state and heir apparent. The Alien and Sedition Acts, which had been enacted as a temporary war (or quasi war) measure, expired.

And one last note. From where we stand today, we would assume that if Jefferson and Madison really believed that unconstitutional laws had been enacted, they would file a lawsuit and try to get the U.S. Supreme Court to strike down those laws.

They didn’t, for reasons that I hope to explore in a future post. And the same question arises for today’s Tenthers. If the Constitution is on your side, why not sue instead of raising from the scary past the idea of states deciding which federal laws they will obey?

Comments (63)

  1. Submitted by Paul Landskroener on 07/28/2010 - 09:53 am.

    Another well-done piece, Eric. I look forward to your next piece on why Jefferson didn’t run to federal court to block the Alien & Sedition Acts. (I know why, but I look forward to your explanation.)

    Your (implicit) exposure of Emmer and Bachmann as the ignoramuses (ignorami?) they are reminds me of the recent headline in the Onion: “Local man passionately believes in what he imagines the Constitution to say.”

  2. Submitted by Danny McConnell on 07/28/2010 - 10:11 am.

    Eric,
    I’m no constitutional scholar, but in your penultimate paragraph, you state that Jefferson and Madison “would file a lawsuit and try to get the U.S. Supreme Court to strike down those laws.”

    Perhaps I’m wrong, but I don’t think the Supremes had that power until Marbury v. Madison in 1803. Of course, Jefferson was POTUS until 1809, but Jefferson had a particularly unfavorable view of the Marbury v. Madison decision, saying it would have the effect of “placing us under the despotism of an oligarchy.” I find it hard to believe he would have pursued the judicial option.

    Just an observation.

    Another great article, thanks Eric.

  3. Submitted by myles spicer on 07/28/2010 - 10:20 am.

    Silly me…I thought this issue had been decided once and for all in the incredibly brutal Civil War, which was precisely the reason Lincoln (a good Republican) gave to fight the war.

    Secondly, the country is so different from when the constitution was written, it certainly needs some sensible evolution. The recent Citizens United case is a fine example — there were virtually NO corporations when the Constitution was written, so the Founding Fathers could not explicitly address that in the the construction of the document (and I think would be horrified to learn that we 21st century citizes have now defined “corporations” as “individuals” as was written in the document.

    Finally, I am amazed at these states right activists who are bold in their objection to Federal intervention, then run screaming…begging… and threatening unless they get fast and furious FEDERAL assistance (read Bobby Jindal).

    Frankly, we might be a better country should we let some of these folks go, along with their state (read Rick Perry).

  4. Submitted by Gary Thaden on 07/28/2010 - 10:23 am.

    Sorry, you did not coin “Nullificationism”. Try googling it. Used in 1835, but a different meaning. Used in a 2004 book that mentions nullificationism and the Kentucky resolution your discussed.

    The whole Tenther focus on the pre-1800 part of American history ignores two later historical events. (1) The 1803 Supreme Court decision, Marbury vs. Madison, in which the Supreme Court gave itself the power to declare laws (federal and state)contrary to the federal constitution; not the states through nullification. (2) Tenthers also ignore the American Civil War (18610-1865). That war decided the question of whether states can succeed from the United States. They can not.

    Great articles, always interesting and thoughtful.

  5. Submitted by Dennis Tester on 07/28/2010 - 10:31 am.

    Wow, an excellent piece Eric! And as to your question at the end, “If the Constitution is on your side, why not sue instead of raising from the scary past the idea of states deciding which federal laws they will obey?”

    Regarding Obamacare, I believe that effort is underway.

    http://tinyurl.com/33b4yuu

    I don’t believe the “nullification” effort is a serious one but it serves the purpose of educating the public as to the relative powers of governments. Most young people today don’t even know, for example, that the states created the federal government, not vice versa.

  6. Submitted by John E Iacono on 07/28/2010 - 10:50 am.

    A few notes:

    >If those looking to the tenth amendment may be designated at “Tentherists” by those hostile to them, it seems to me that it would be only fair for them to be designated “Revisionists” by those who oppose them, and I suggest adoption of this nomenclature in future.

    >The Jefferson Republicans (now known as Democrats, the party that in its southern members seceded and started the civil war and who in the north as “copperheads” opposed the war throughout the fighting) maintained up to that war that the constitution was an alliance of STATES, who had the right to leave if they did not approve of the direction the federal government was going. This question was settled in blood by that civil war. To the southern democrats, it was a war of “secession”, and to Lincoln and the northern republicans it was a “rebellion” – terms reflecting their divergent views on this issue. It was not a new issue, but one that had to be settled once and for all. It was.

    >The constitution was NOT “passed” by the states, but by the direct vote of the people after the constitutional convention. They selected by their votes delegates who in turn voted to accept or reject the proposed constitution, deliberately bypassing state legislatures. This to get away from the different structure embodied in the Articles of Confederation which essentially left all real power in the hands of the states. It was the fierce opposition to this perceived diminution of their power that forced the promise of, and later enactment of the bill of rights, including the tenth amendment, in order to soften the state legislatures’ opposition.

    >It is inaccurate to suggest that fear of federal power was not active and motivational at the time the constitution was drafted and adopted. If one reads the bill of rights carefully, this fear takes specific shape in each one of them, spelling out ten ways in which the new federal government is to be carefully circumscribed. And it is safe to say that the defenders of the proposed constitution were well aware of this fear, to the extent that they recognized that without these limitations their document would NOT be accepted. To suggest that THEY wanted more power for the federal government only makes more clear that the PEOPLE, whose approval they needed, did not.

    >History has shown that the fear of overreaching by the federal government was not at all improper. Time and again congress and the executive branches have gone beyond powers actually committed to them, and had to be called back by the people (as in the case of the federalists and the alien and sedition laws) or by the supreme court (as most recently in the case of the rights of detainees). As always, those in power claim they are within their rights, and callously proceed until forced to back down. It is not insignificant that very often it is one of the provisions of the bill of rights that is the key.

    >It is the great strength of our constitution, including those first ten amendments, that various ways to check the arrogance of federal power are provided for, even including the right to revolution and the means to effect it (the second amendment) should it be needed. These checks are a constant thorn in the side of the parties currently in power, and have stood us well over the centuries.

    >That recourse to the new Supreme Court was not sought by the states who objected to the alien and sedition laws should be laid to the fact that the court was not yet recognized – as it is today – as the final arbiter regarding conformity to the constitution. It took the first chief justice to skillfully maneuver the court into this now recognized role. Today it would be considered the first avenue of defense against federal government overreaching.

    >It is not uncommon – I may even say it is common – for revisionists to cast disparaging comments and even sneering attacks against those who invoke the rights given them by these historic documents. I note, however, that when these same persons do NOT have the power they are quick to claim their “rights.” I maintain that this very tension is not only anticipated by our founding documents, but embraced by them, and is a healthy expression of our constitutionally created civil environment.

    >I say, “Let the wild rumpus begin” – and let’s keep our sense of humor and perspective intact the meanwhile.

  7. Submitted by John Harris on 07/28/2010 - 11:24 am.

    There was, I believe, a “nullification” movement by that name. The movement was largely confined to the pre-civil war south, and John C. Calhoun was one of its primary advocates as were members of the South Carolina legislature. The enemies of the nullcation advocates included Andrew Jackson and his acolytes, e.g.,James K. Polk of Tennesee, who was our 11th President.

  8. Submitted by Ray Schoch on 07/28/2010 - 01:34 pm.

    Well done – by both Eric and the commenters, especially Mr. Iacono.

    Cautions about the overextension of federal power duly noted, the use of the term “arrogance” in reference to federal power and its application strikes me as something that casts the debate in terms of “righteous” vs. “evil” when such labeling or categorization is neither necessary nor helpful. In practical terms, I’ve seen a lot more obvious arrogance in the application of power by local and state officials than by federal officials, but that merely reflects my own personal experience.

    That issue aside, Mr. Iacono seems to me quite correct in pointing out that anxieties about the extent of federal power and its use are neither new nor particularly unusual. As he suggests, it’s a tension built into our political system, and the fact that these kinds of debates over just how much power which branch or level of government has, or should have, continue to pop up from time to time, is one of the reasons why we’ve not devolved into an obvious dictatorship, at least not yet. I’m inclined also to agree with his point about that concern being well taken. True, the Supreme Court’s role as final arbiter didn’t exist when the 10th Amendment was adopted, but it’s certainly well established now, and the instances when Congress or the Executive have had to be reminded by the courts that they’ve overstepped their authority are too numerous to mention.

    Further, Mr. Iacono is also quite correct in pointing out that the question(s) of nullification AND secession were settled at Appomattox Courthouse in April of 1865. “Tenthers” who ignore the result of the most brutal war in our long history of military conflicts reveal an ignorance that is, in and of itself, more than a little threatening.

    It seems to me worth noting that, after all his stated anxieties regarding the threat of the federal government overstepping its constitutional authority, Mr. Jefferson nonetheless persuaded himself and Congress that – even though there is nothing in the Constitution to sanction such activity – using taxpayer dollars to double the size of the United States, in the form of the Louisiana Purchase, was too good a deal to pass up. A big chunk of Minnesota was part of that treaty agreement, so this is something with a genuine local application. Reality sometimes does intrude into the realm of the theoretical…

    As for that reality… it’s certainly true that health care, for example, isn’t mentioned in the Constitution. Neither is Social Security. The wealthy have railed against Social Security since it was inaugurated in the 1930s, though millions of less-affluent elderly Americans now rely upon it for a substantial portion of their income in old age. The elderly are also among the most reliable and persistent voters as a group, so one easy way to tell if Ms. Bachmann and Mr. Emmer are genuinely serious about their “Tenther” beliefs will be to see if they propose to do away with Social Security as part of their limitations to federal power,.

    If they do, I’d guess town hall meetings will become a lot more interesting than either of them anticipated at the start of the campaign season, but my bias is that both Bachmann and Emmer are neither constitutional scholars nor serious about their stated objections to federal power. Everything I’ve read and seen on TV so far suggests to me that they are demagogues at best, and have no intention of alienating substantial portions of their voter base by threatening to end programs that benefit that same base tremendously.

    Finally, Justice Scalia notwithstanding, efforts to know the thinking of the nation’s founders two centuries after the fact strikes me as an exercise similar to religious fundamentalists claiming to know what the writers of the Bible “really meant.” To be as gentle as I can, at its very best, such an effort constitutes nothing more than sophistry.

  9. Submitted by Joel Jensen on 07/28/2010 - 02:45 pm.

    First, I wonder if under the EmmeRevolution, Minnesota would have nullified the original Patriot Act (or at least significant parts of that law.)

    Have the very direct parallels between the Alien and Sedition Act and the Patriot Act (as initially enacted and extravagantly interpreted by the Bush administration) occurred to Emmer? I’m guessing that IOKIYAR is a silent addendum to Emmer’s nullification bill.

    Second, we tried allowing States to have veto authority over federal law and abandoned that structure because the Articles of Confederation system did not work in the complex and inter-related political and economic structure of our nation as it stood in the late 1700s. (Proponents of resuming the Articles of Confederation structure should be asked to explain how conditions today would be more favorable, instead of less, to such a structure.)

    Third, the abandonment of the AoC and writing of a new constitution went forward with the support of pretty much every ‘founder’ still alive at the time

    In fact, Jefferson himself may not have been as zealous or dogmatic as many would now portray him.

    Jefferson is often quoted by those aligning with the Tenthers as saying “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

    I wonder if they know the context of that statement. (Because as we’ve recently been reminded, “Context is everything.”)

    The quote comes from Jefferson’s letter in November of 1987 to William Stephens Smith and is in response to Smith’s expressed concerns with the responses to put down what has come to be called Shay’s Rebellion. In discussing the ‘rebellion’ in Massachusetts, Jefferson wrote:

    “They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

    What country before ever existed a century & half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure. …”

    Jefferson was not saying he hoped the ‘rebellion’ would succeed, only that the spirit of resistance that gave it life was not a danger to the nation, but essential to preserve the nation.

    Ultimately, Jefferson believed in and placed his faith in reason. Emmer should do so well.

    Instead it appears that Emmer is content to adopt as his guide Jefferson’s closing of that letter:

    “We must be contented to amuse, when we cannot inform.”

    *http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=802&chapter=86685&layout=html&Itemid=27

  10. Submitted by Bernice Vetsch on 07/28/2010 - 03:27 pm.

    Re: Corporations

    Wikipedia notes that companies similar to modern corporations existed as far back as the Mayan civilization and that, by 1611, the East India Company’s investors were earning a 150% return on their investments.

    In 1812, Thomas Jefferson said of corporations:

    “I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

    I wonder what he would say about Citizens United.

  11. Submitted by Joel Jensen on 07/28/2010 - 04:07 pm.

    The aristocracy of moneyed corporations?

    Some people refer to them as the ‘elite’.

    Emmer just calls them his ‘base’. *

    While advocating strict and historic construction (or re-construction in their own image) of the US Constitution, in support of their own agenda such as the Tenther nullification arguments, the GOP and their representatives on the US Supreme Court seem to forget or ignore those aged interpretations – such as those concerning artifical legal entities and their ‘personal’ rights under the Bill of Rights – when it suits their political ends.

    The very definition of ‘activist’.

    This selective amnesia with respect to ‘originalism’ in interpreting the US Constitution seems to have become something of an epidemic among those on the far right.

    *With due credit to George W. Bush
    http://www.youtube.com/watch?v=mn4daYJzyls

  12. Submitted by John E Iacono on 07/28/2010 - 04:08 pm.

    Good points, Bernice.

  13. Submitted by Dennis Tester on 07/28/2010 - 04:13 pm.

    I’ve heard people say that the civil war settled the states rights dispute once and for all. But it seems to me that the civil war only decided whether or not the states should be allowed to secede from the union, not whether or not the 10th Amendment still applies.

    Last I looked it hadn’t been repealed.

    And I’m quite certain that Bachmann, Emmers and most conservatives believe philosophically that social security, medicare etc., exceed federal power, but they’re also politicians who realize that most voters have been educated in our public schools and so it would politically unwise to share those views in public if they want to be re-elected. Sort of like a democrat politician admitting to his factory floor constituents that if he had his way, the government would own and operate the factory.

  14. Submitted by John E Iacono on 07/28/2010 - 04:13 pm.

    Webster’s Collegiate:

    “Arrogance: an attitude of superiority manifested in an overbearing manner or in presumptuous claims or assumptions.”

    No moral overtones implied, it seems.

  15. Submitted by James Hamilton on 07/28/2010 - 05:20 pm.

    Thanks for an interesting discussion.

    The Constitution, like all political documents, is the result of compromise. What I take away from this piece is that we’re simply engaged in a very long running political argument, in which the arguments which resulted in a particular compromise will be repeated ad infinitum.

  16. Submitted by Joseph Skar on 07/28/2010 - 05:24 pm.

    BV – What do you think Jefferson would have said about labor unions? If unions can buy votes corporations should have the same right.

  17. Submitted by Thomas Olson on 07/28/2010 - 06:35 pm.

    An outstanding article and thoughtful, civil, discussion. Since I believe that conservatives simply seem to want less government, period, whether they understand the can of worms, constitutional niceties aside, that they propose to open. What they seem to believe is that if more of government is left to the states that the result will be less government. But in a number of instances, as the federal government fumbles and falters, the states–Mass. in health care, many in renewable energy, have stepped forward. It’s not a foregone conclusion that putting more power in the hands of the state will result in the less government (let’s kill the New Deal) position they favor. What’s more, there’s the question of how Haley Barbour and Bobby Jindal and other officials of sad case states will react when their federal funds (let alone the military bases that are crucial to them) disappear.

  18. Submitted by Richard Schulze on 07/28/2010 - 07:20 pm.

    There is no more fundamental aspect of the democratic ideal than subsidiarity.

  19. Submitted by Ross Williams on 07/28/2010 - 07:22 pm.

    Two things. Let me suggest this is not idle intellectual chatter. This is how the south talked itself into rebellion and started the civil war. Like the confederates, these folks are enemies of democracy. They don’t believe in it unless they are on the winning side. The sad part is that I doubt there is a Lincoln among our current political leaders who will step up to save us if it comes to that.

    Second, who cares what the founders would think? We have 200 years of history since then. I suspect the founders, risked their lives to take up arms against their King and take control of their own destiny, would have been assessing the potential military strength each side could bring to the struggle if it came to that. Peaceful resolutions were made only because neither side could whip up enough enthusiasm among the populace for a good fight.

  20. Submitted by Brian Hanf on 07/28/2010 - 07:30 pm.

    So if the 10 states that are filing a legal battle win will that be “legislating from the bench?”

  21. Submitted by Dan Hintz on 07/28/2010 - 09:42 pm.

    Eric, I am pretty sure that you have now given this more thought than 99.9 percent of the “tenthers” out there.

  22. Submitted by Dennis Tester on 07/28/2010 - 09:51 pm.

    @Thomas Olson – It’s not that conservatives believe that devolving power to the states will result in less government, but more accountable government. The government that is closest to the people is more accountable to the people. It’s easier to throw out the city council, or even the state legislature than it is to overturn the federal government when the people in 49 other states may disagree with you.

    But the real beauty of the 10th Amendment is that if a person doesn’t agree with their state laws, they can easily move to another state. Whereas the problem conservatives have with federal law is that if you disagree with it, your only recourse is to leave the country.

  23. Submitted by Bernice Vetsch on 07/28/2010 - 11:56 pm.

    Mr. Sklar (#16)–

    You seem to think that the millions of dollars labor unions donate to the campaigns of politicians who support workers’ rights exceed the billions upon billions corporations regularly spend getting politicians elected/re-elected who represent corporate interests (profits) above all else.

    Even though he employed paid workers while also using slaves, Thom Hartmann notes that Jefferson fought to have slavery abolished as part of the Constitution. I’d guess he would be a champion of workers’ rights and therefore of the unions which often have been workers’ only defense against the exploitation practiced by many corporations as long as they can get away with it.

  24. Submitted by Glenn Mesaros on 07/29/2010 - 03:42 am.

    Alexander Hamilton wrote 2/3rds of the Federalist Papers to settle this issue in 1787. You would do better to quote him to explain the constitution. Until you see the American flag fly underneath a state flag on any public property in America, there will be no subversion of American sovereignty. If fact, Jefferson supported some Hamiltonian policies, such as national banking, the tariff, and manufactures, when he became President.

    However, the agitation of certain foreign agents should be identified. For instance, Jonathan Sandys, great grandson of Winston Churchill, recently addressed a Texas Tea party rally, and said:

    “You may well see a repeat of 1861 … If Texas leads the way and goes out, Britain will establish a new special relationship with Texas. This will be in writing. In fact, Texas already has its own long established special relationship with Britain.”

  25. Submitted by John E Iacono on 07/29/2010 - 09:35 am.

    (#6) “It is not uncommon – I may even say it is common – for revisionists to cast disparaging comments and even sneering attacks against those who invoke the rights given them by these historic documents.”

    Ah, well.

  26. Submitted by John E Iacono on 07/29/2010 - 09:56 am.

    Regarding rejection of Social Security and Medicare by those currently opposing the Obamacare bill:

    “You’ve got to know when to hold ’em and when to fold ’em” comes to mind.

    It is one thing to oppose programs which the public generally embraces, and quite another to oppose a new program about which more than half of the general public is at very least fearfully suspicious.

    I suspect these experienced politicians know how to play poker.

  27. Submitted by Paul Brandon on 07/29/2010 - 11:03 am.

    John–
    It would appear that, as people get more familiar with the new healthcare regulations, they like it more.
    See:

    “Poll shows opposition to health care overhaul declining”

  28. Submitted by Colin Lee on 07/29/2010 - 11:07 am.

    Eric, in your next piece on Tentherism, I recommend investigating another bill passed in 1798, but with no Constitutional objections from any of our Founding Fathers in Congress. Congress passed and President John Adams signed into law a bill requiring privately-employed sailors to pay a federal payroll tax for health care, similar to Medicare. This bill seems intricately connected to the “Constitutionalist” argument that our federal government cannot pass any health care legislation.

    Google “Act for the relief of sick and disabled seamen”. For a copy of the debate over the bill, add “site:scribd.com” to the search terms.

  29. Submitted by Eric Larson on 07/29/2010 - 01:33 pm.

    E. Black – Great work. I’m a serious 10ther who is willing to listen to new thoughts and ideas. With that in mind, please provide the full sourcing of this piece from your article.

    “Madison, during the drafting of the Constitution, felt very, very strongly that the federal government should have veto power over any and all state laws. This is kinda the opposite of what Emmer is proposing, which would sort of give states the power to block federal laws”.

    This being such a contradiction of what he actually did (assuming he supports his work)there must be several documented cases of his writing in private or possibly public correspondance that he felt ‘very, very strongly about …..’

    You can post it here please.

    Eric Larson

  30. Submitted by Susan Herridge on 07/29/2010 - 01:34 pm.

    Catching up on this article and discussion a bit late. Thank you very much for a most interesting and mostly civil dialogue. Not a single post by Mr. Swift – what a relief!

  31. Submitted by Annie Grandy on 07/29/2010 - 02:58 pm.

    It will be interesting to see the results of this year’s elections to see if the majority of the people agree with the ‘tenthers’. Sometimes that gets lost in all the noise, that the Constitution does not guarantee the country will be run according to each individual’s wishes or even those of a small group. Majority rule determines how this great country will proceed and controls the government. Be part of that majority; become informed by reading, listening and meeting the candidates and then vote.

  32. Submitted by Bo Darville on 07/29/2010 - 03:42 pm.

    Like the commenter in #25 said Bachmann and Emmer aren’t WFB. They’re simple politicians who are trying to articulate a sentiment about the federal government overstepping what they believe to be some sort of boundary. Many feel that the ‘federal’ government is becoming a ‘national’ government. My personal opinion is that it is healthy to have this debate to assist in defining the roles of different levels of government.

  33. Submitted by Jon Kingstad on 07/29/2010 - 05:28 pm.

    How is being a “Tenther” any different from Governor Ross Barnett barring James Meredith from attending Ol’ Miss “states’ rights? Old wine, new bottle.

  34. Submitted by Paul Udstrand on 07/29/2010 - 10:19 pm.

    John://
    >If those looking to the tenth amendment may be designated at “Tentherists” by those hostile to them, it seems to me that it would be only fair for them to be designated “Revisionists” by those who oppose them, and I suggest adoption of this nomenclature in future.

    Huh?

  35. Submitted by Paul Udstrand on 07/29/2010 - 10:58 pm.

    I think there are a couple problems with discussions like this that should be recognized from the start. First, one needs to keep in mind the fundamentalist mindset of some (not all) “tenthers”. This idea that somehow you can interpret the constitution as if it’s a religious text, hence rendering it’s authors, (at least some of them) as deities of sorts. The problem with this is you end up pretending history hasn’t happened. You end up arguing about historical figures not as history but as contemporary interpretations. Logically this is nonsense. No matter what documents you refer to, or how complete the record is, you cannot determine what Jefferson, Hamilton, Madison, or anyone else would make of a contemporary issue. The only thing one can probably say with certainty is that any of these guys would have given issues much more and better thought than someone like Bachmann.

    Here you had guys living in a time when the nation was literally still in the crib, having cobbled together a nation without settling majors issues like slavery. They were also living in a time when the Courts role and limits as arbiter was not clearly defined. They had given birth to the constitution but no one knew how it was going to grow up. Under these circumstances these men were faced with a federal law that they felt was a violation of the basic principles they’d hoped to promote in the constitution. Given the circumstances at the time secession looked like a viable response. If the country was going off a cliff why follow it?

    You have to remember, that was then, this is now. When you attempt to argue about whether or not these guys would have supported contemporary “tenthers” you’re not engaging in a history debate, your ignoring history and engaging in fantasy. The history your ignoring is what’s happened since these guys contemplated the Tenth Amendment. You’re acting like where we are today is irrelevant and all that matters is what a bunch of guys who’ve been dead for over 200 years would have thought.

    The other problem with this kind of debate is assumes that even if you can figure out what these guys would think of Obabacare, it matters. The problem here is these guys, as smart as they were, were not omniscient and infallible. Even if you reckon they would agree with you it settles nothing, it doesn’t tell you whether or not your right or wrong. We are now the government, this is our time, and our problem, and we’re not required to limit our policy to whatever a bunch of guys would have or could have done 200 years ago, or even what they intended to do. Slavery was wrong, we’re not required to re-implement it because Jefferson had slaves and didn’t intend to end slavery in the south.

    One thing it is to study these guys as history, another it is completely to study them as some kind of well of infallible wisdom. If you want to learn from history fine, but you don’t do that by limiting your historical study to a what a handful of guys said and did between some date and some other date in history.

  36. Submitted by Eric Black on 07/30/2010 - 01:26 am.

    thanks to all for a great thread. Just responding to Eric Larson in #31. Just google madison federal power over states and you’ll find lots of references. This power was part of the Virginia Plan, which Madison drafted and which was introduced at the beginning on the Const’l Convention as a basis for debate. Here’s one: http://www.usconstitution.net/consttop_ccon.html
    Keep looking around and you’ll find that the failure of this power to be included is often described as one of Madison’s top two or three disappointments with the final draft.

  37. Submitted by Paul Udstrand on 07/30/2010 - 09:25 am.

    Another thing to remember about the civil war and states rights is it wasn’t all about secession. Lincoln also pushed back the limits of state sovereignty with the Emancipation Proclamation, which was an act of executive power in a addition to being a federal mandate. The Emancipation was eventually solidified as an amendment to the constitution but it clearly established the ability of the federal government to issue mandates states cannot ignore.

  38. Submitted by John E Iacono on 07/30/2010 - 10:03 am.

    It’s not a matter of what they THOUGHT — it’s a matter of what they SAID, after months of debate and compromise.

    The Constitution, with the Bill of Rights, had, and still has, the force of law.

    Laws admit of interpretation, but if that interpretation “interprets” away the meaning of the law itself, or refuses to enforce what it says, then it is the interpretation that is wrong.

    There are ways provided to change a law, but refusing to acknowledge what the law as worded says is not one of them.

  39. Submitted by John E Iacono on 07/30/2010 - 10:07 am.

    Paul,

    …only fair for those who oppose the “tenthers” to be designated…

    Does that help? I agree the structure was obtuse.

  40. Submitted by Paul Udstrand on 07/30/2010 - 05:22 pm.

    //It’s not a matter of what they THOUGHT — it’s a matter of what they SAID, after months of debate and compromise.

    John, it’s a simple enough matter to see what they said, all we have to do is read the constitution. However, it still requires interpretation. Are you now saying that the authors intent is irrelevant? To determine intent you have to infer what they were thinking.

  41. Submitted by Jon Kingstad on 07/30/2010 - 11:24 pm.

    I’d like to second Paul Udstrand’s comments above and add a rejoinder to Mr. Iacono’s comment “It’s not a matter of what they THOUGHT — it’s a matter of what they SAID, after months of debate and compromise.

    The Constitution, with the Bill of Rights, had, and still has, the force of law.”

    You are right, the words still have the force of law, but to quote Justice Marshall:

    “It is a Constitution we are interpreting….”

    Justice David Souter at his Harvard commencement address used this quote in the context of an exchange between Justice Hugo Black and Dean Griswold *(of the Harvard Law School) to which I refer you.

    http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

    The US Constitution was finally ratified in 1789 for 13 eastern seaboard former British colonies. Are we to believe that a document written for at most 4 million people over two centuries ago under conditions which today anyone would call primitive should trump a more elastic and reasonable interpretation for 300 million people that recognized the changes that have happened since then? That’s what the “originalists” would have us do. But at the same time ask us to accept that we live in a post-modern world?

  42. Submitted by Paul Udstrand on 07/31/2010 - 09:00 am.

    //…only fair for those who oppose the “tenthers” to be designated…

    Does that help? I agree the structure was obtuse.

    Thanks for clarifying John. The only problem with your suggestion is it mis-identifies the revisionists. Tenthers are actually engaging in far more revisionism than anyone else as general rule. All you have to do is look the latest text book requirements for Texas to see that. It’s always ironic when so-called conservatives, who are supposed to be the ones preserving the lessons of history, distort history for ideological consistency.

    My problem with the “tenther” label is I think it misdirects and distracts us from the actual demographic. This is not a “new” group of people that has emerged, it’s merely the latest manifestation of the same conservative/fundamentalist/Republican coalition that’s been vying for control of the country since the 50s. I agree with Eric that the argument about the Tenth amendment is necessary, but let’s not pretend we’re actually talking about a new movement.

  43. Submitted by Paul Udstrand on 07/31/2010 - 09:50 am.

    #43//That’s what the “originalists” would have us do.

    Yes, the reference to originalsim is a great illustration of consistent demographic I was referring to earlier. After all, tentherism is simply an expression of oringinalism, it’s the same mindset.

    It’s also important to note that originialism is essentially and incoherent “docgtrine”. It pretends fantasy is nostalgia, and nostalgia is history. It requires judges perform an impossible task, determining not only what Hamilton or Adams or would make of something like stem cell research, but what the consensus the entire constitutional convention would arrive at after debate. This is a great way for Dan Brown to write the “Da Vinci Code” but it’s an awful way to make law.

    Originalist have never explained exactly how they accomplish this task, the “channeling” technique has never been revealed. All Scalia says about it is: “I’m right and your wrong”. Classic fundamentalism.

    Here’s the thing, and basically this why tentherism and originalism appeal to certain personalities- it allows the believer to pretend that they are substituting the judgment of the devine for their own; “this isn’t my opinion, it’s Gods, or the founding father’s” etc. It’s the classic difference between the appeal to authority conservative minds prefer and an appeal to reason the classical liberal mind prefers. Of course the irony in the Unites States is that the “authority” these conservative minds are appealing to, i.e. the founding fathers, were classic liberal enlightenment thinkers who by and large rejected appeals to authority in lieu of reason.

    I’ve said it before, the real issue here isn’t so much tentherism, or Tea Parties, it’s that fact that we’ve been living in a period of anti-intellecutalism and anti-rationality that began in the early 60’s and really took hold in the mid 80’s. Our inability to examine problems rationally and develop effective public policy is a product of that intellectual mediocrity and paralysis. The depressing thing about is that it’s not just conservatives, but liberals as well that have bought into what Susan Jacoby calls the most recent Age of Unreason. The liberal participation in this epoch is whole nuther animal, it might be interesting to discuss that sometime.

  44. Submitted by John E Iacono on 07/31/2010 - 11:44 am.

    (#42)Paul Udstrand says:

    John, it’s a simple enough matter to see what they said, all we have to do is read the constitution. However, it still requires interpretation…

    Depends on what you mean by “interpretation”.

    We do need to know what the founders were thinking when the final wording of the constitution and bill of rights are contemplated.

    But that does NOT mean we take the thinking of any one framer as definitive. If what one of them THOUGHT but did NOT get his view into the final document, it serves more to tell us what was NOT intended by the document than anything else.

    Once we sort out what the various members THOUGHT we are in a position to examine the document to see whose views prevailed, this clarifying the intent of the document.

    And once we know it (at some times easier than at others) that understanding of the law becomes controlling, and NOT to be “interpreted” away by revisionists.

    Any suggestion that “interpretation” allows other than application of the framers final intent is “revisionist,” plain and simple.

    Saying they did not know about computers, for instance, only says “if you think the constitution should not apply, you can try to change the constitution”. It does NOT mean you can change the original meaning of it to your liking in any other way.

  45. Submitted by John E Iacono on 07/31/2010 - 11:55 am.

    (#43)Jon Erik Kingstad says:

    “Are we to believe that a document written for at most 4 million people over two centuries ago under conditions which today anyone would call primitive should trump a more elastic and reasonable interpretation for 300 million people that recognized the changes that have happened since then?”

    Short answer: Yes, we are to believe exactly that.

    Failure to do so leaves the entire rule of law concept of the past 800 years or so in the dust.

    If one does not like what it says, the document itself provides the means — and the only legitimate means — of changing it. And it is appropriately hard to do, by specific intent.

    Just as no-one gets to “interpret” a speed law that mandates 25 miles per hour in a school zone to mean “go whatever speed you want to” when school is out, no-one gets to “interpret” a bill of rights amendment as “inoperative” because one now does not like it.

    And just as one may not get a speeding ticket each time one speeds in a school zone, still one has no defense if the police issue one in a particular instance. If you disagree, try to persuade the judge.

    We are a nation of laws. Live with it, I say.

  46. Submitted by John E Iacono on 07/31/2010 - 12:01 pm.

    (#44) Paul Udstrand says:
    “Tenthers are actually engaging in far more revisionism than anyone else as general rule.”

    I believe that assertion needs to be proved. I believe it is inaccuate.

    But if it WERE accurate, I take it your argument is that it’s OK to be a “revisionist” because both sides are guilty?

  47. Submitted by John E Iacono on 07/31/2010 - 12:09 pm.

    It continues to bother me that so many liberals often appear to think that if I disagree with them I am a fuzzy thinker or a bad person and should just “shut up.”

    I’m glad I have the first amendment to protect me, despite their efforts to shout over the opposition, like that blonde gal on Channel 2 on Sunday mornings. (I have trouble remembering the names of people I don’t like.)

    I appreciate that that tendency seems muted somewhat here.

  48. Submitted by Don Medal on 07/31/2010 - 12:09 pm.

    A great article and a really productive thread of discussion. Like Paul I’m deeply troubled by anti-intellectualism becoming mainstream. We seem increasingly to hear people say they can interpret the Constitution better than the Supreme Court and that if another side wins an election the country ‘needs a revolution’. I hear people say “well that’s just scientists talking” in regard to the most critical technical issues of our time.

    It is not that hard to make this country ungovernable and unable to respond to domestic and international crisis. Those that hold that gridlock and chaos are a good outcome the appropriate label would be anarchists, not Constitutionalists.

    Let us try not to make this a discussion of sides, but state our points rationally.

    We shall either decide to work together or we shall cease to be a great nation and join the ranks of the fatally flawed.

  49. Submitted by Paul Udstrand on 07/31/2010 - 02:43 pm.

    //We do need to know what the founders were thinking when the final wording of the constitution and bill of rights are contemplated.

    See that’s exactly my point John, the fact is that it is logically impossible to know what the founders, or anyone else for that matter, were/are thinking or thought.

    In a court of law today, we are forbidden by standard rules of evidence from testifying as to what anyone other than our selves “thinks” about anything. I cannot testify as to what my wife thinks about anything, and I sleep with the woman every night, and she frequently tells me what she thinks about stuff. Nevertheless, I can only testify about what she says to me, I cannot claim to know what she thinks or was thinking about something. Why? for one thing she could be lying to me. She may also not be telling me all of her thoughts for some reason. She may have changed her mind without telling me.

    This is my wife, right here, right now today, a living breathing person. Now your telling us the only way we make law in this country is to know what a bunch of guys were thinking 200 years ago? It’s impossible. No matter what documents we compile be they letters, diaries, contracts, or the constitution itself, it is folly to believe that any volume of documents actually grants us enough access to the minds of founders that we can deduce what they were collectively thinking about anything and everything we would need to know. I have a background in psychology, psychologists have been trying to develop instruments that provide that level of access to human thought processes for over 150 years and they’ve had limited success. What do we have to access the founding fathers? Did everyone write complete and honest diaries? Does no one self edit according the dictates of their ego? Does everyone always put their complete thoughts down on paper? Of course not. We cannot interview dead people, they cannot testify, they cannot answer questions. One thing we do know for an absolute fact is that they never said or wrote anything about Obamacare, assault rifles, or stem cells. So even if you did have some kind of way of channeling their dead minds, you could find no thoughts on these subjects.

    The fundamentalist mind has a real hard time with the idea of interpretation. Fundamentalism assumes that a text speaks for itself and requires no interpretation so when you talk about interpreting a text they accuse you of revisionism, and relativism. It’s really hard for fundamentalist to understand how a text that isn’t absolute and completely self evident can provide meaningful guidance.

    The thing you have to understand is that the constitution can provide guidance even though we cannot know the minds of it’s authors. It’s like a math formula, you don’t have to know anything about the person who invented the formula in order to use it. I can’t remember who invented the regression equation or odds ratio equations we use to evaluate statistical data, and I have absolutely no idea what they ever thought about anything, but I can still use the formulas. likewise, we have a constitution, instead of being a set of formulas, it’s a set of principles and rules we are tasked to live by. What we do, all we can do, is read that document, interpret the principles, and apply them to our current circumstances.

    That’s all we ever do. You may think your doing something else but your not. You cannot exercise John Adams judgment, you can only exercise your own judgment.

  50. Submitted by Don Medal on 07/31/2010 - 04:45 pm.

    Paul-
    Perhaps a better word than “thinking” is intent, or to be more precise, expressed intent. When there is some ambiguity as to how to apply the law to a particular case often the words associated with the original passage of that law can be of assistance. Eric’s article and many of the comments above describe this process. I see only two alternatives, both unsatisfactory. We could just say there is no applicable law or the courts could interpret the law as they think best, depending on their own beliefs and values. The first would leave us with a whole bunch of loopholes, the latter with what’s called judicial activision.

    Laws are all written by human beings and not God given. Laws are sometimes wrong, courts are sometimes wrong, but our system strikes me as able to correct these errors over time.

    IF We The People exercise good judgment. I can’t say that’s a given.

  51. Submitted by Don Medal on 07/31/2010 - 06:00 pm.

    perhaps the issue is with the word “thinking”.
    Paul is right, we can’t know what the authors of a law were thinking anymore than we can know what Paul’s wife is thinking. “Intent”, especially “expressed intent” is another matter entirely. By reading the debates and various writings surrounding a bill the courts have help working out how to apply the law to circumstances that may not have existed at the time it was written. Or to iron out imperfections in the law itself. Yes, laws have imperfections, they are written by humans. The alternative to this expressed intent stuff is to have judges do that “activist” thing which The People seem not to like much.

    I’m thinking Paul does use his wife’s expressed intent in his daily life. I sure hope so.

  52. Submitted by Paul Brandon on 07/31/2010 - 09:31 pm.

    John (#49)–
    The first amendment protects you against *government* action restricting your free expression (within the limits of causing harm).
    It says nothing about private venues such as MinnPost. At best you’re invoking a metaphor.

  53. Submitted by Paul Udstrand on 07/31/2010 - 11:30 pm.

    Don,

    Appealing to “intent” instead of thinking doesn’t get us out of trouble. We know for a fact that none of the founding fathers had any intent whatsoever regarding stem cell research, or wiretaps. Asking what the framers “intended” is just another way of re-framing the issues in terms of what the framers would do. It presents us with two problems; first, it puts us in the impossible position of trying to figure out what the framers would do about something they couldn’t even imagine in their lifetimes. Second, it assumes that whatever the framers would do, it would be the right thing to do in any event. Given their fallibility there’s no reason to suppose their solutions are better than ours.

    Intent is one the most difficult things to prove in law. We have a hard time proving what Denny Hecker’s intent was one year ago, and you want us to figure out what a bunch of guys who died over 200 years collectively intended?
    Answer me one simple question: did the framers “intend” to abolish slavery? Here’s another, did the framers intend for women to have the right to vote?

    We have a constitution. Most of us believe in the principles that constitution enumerates. We can read that constitution, interpret it’s principles and apply them to our current circumstances. But we cannot travel back in time and ask the framers what they intended, we can only interpret the text they left behind. As far as intent is concerned, I think the clearest intent we can deduce from the constitution is that the framer wanted future generation to run the country as they see fit within the guidelines of the constitution. If we need a national health system we can build one. Why even ask if the framers intended us to have one?

  54. Submitted by Paul Udstrand on 07/31/2010 - 11:51 pm.

    //It continues to bother me that so many liberals often appear to think that if I disagree with them I am a fuzzy thinker or a bad person and should just “shut up.”

    Well, first of all, it’s disingenuous to suggest that only liberals are prone to classify fuzzy thinking. Glen Beck’s book “Arguing with Idiots”, and Ann Coulter’s “How to Talk to Liberals If You Must” come to mind. Guys like Bill O’Reilly have made the phrase “shut up” a mainstay of their polemic repertoire.

    Be that as it may however I must point out that there is a considerable difference between being accused of fuzzy thinking and being a fuzzy thinker. Speaking for myself I have to say I’ve never thought John Iacono is a fuzzy thinker. I think some of his thoughts are fuzzy, but we all have fuzzy thoughts on occasion, I know I’ve had my share and always will. The whole purpose of discourse and dialogue it provide an venue for us to clarify our fuzzy thoughts. It’s a rare occurrence at Minnpost when someone tells someone else to shut up. I’ve never wished John would shut up. And I definitely do not believe John is a fuzzy thinker.

    Bear in mind when I talk about the minds of fundamentalists these observations are not based on comments here at Minnpost. These observations are the results of a lifetime of experience and study. Furthermore I’m talking about broad intellectual tendencies that apply in varying degrees, if any, to any specific individual.

    I assume that like myself, comments here are a small window into anyone’s intellect, not nearly a big enough snapshot to draw conclusions about any specific personality. With one exception that shall not be named:)

  55. Submitted by Paul Udstrand on 08/01/2010 - 12:03 am.

    //But if it WERE accurate, I take it your argument is that it’s OK to be a “revisionist” because both sides are guilty?

    I don’t have a problem with revisionism on any side as long as it’s based on accurate and reliable observations and not driven by ideology. The problem with the conservative notion that the framers wanted this to be a Christian nation, or that the Confederacy went to war for the principle of states rights instead of the preservation of the slave economy is that these revisions are simply not supported by historical evidence.

  56. Submitted by John E Iacono on 08/01/2010 - 03:22 pm.

    The founders did not want a national government supported “established church” such as certain states already had. But they did not have to “want” [an outwardly] Christian nation” they HAD one, save for a few persons here and there. It was part of their environment. Meetings started with a prayer. Chaplains were part of the revolutionary armies. They invoked God in their speeches and proclamations — although some were purposefully vague in their references. They invoked the Christian God’s blessings on their endeavors, and later affirmed their trust in Him on their coins and currency.

    The documents they eventually agreed upon, however, addressed issues with which they were concerned, and that one was a non-issue for them, regardless of their personal convictions. The colonies were, and the nation formed by them was, a “Christian nation.”

    Christianity, with its assertion of the value of each individual person with “inalienable rights” from God, was recognized as the source of their most basic claims.

    Recent efforts to paganize the civic environment in this country should be expected to meet opposition as revisionist in a nation with such roots, though I find your assertion that some say the founders “wanted” this problematic. They HAD one – they did not have to WANT it. And they did not object.

    As for the Confederacy, while agreeing that concerns over Lincoln’s election and anxiety over the future of slavery were motivating factors, what southern democrats were motivated to DO was to assert the right of states to secede to protect that future. THAT was what caused the Civil War, and was the action over which it was fought even after, several years into that war, Lincoln in a war measure issued the Emancipation Proclamation. To assert otherwise is revisionist. One does not get one’s own facts.

  57. Submitted by Paul Udstrand on 08/01/2010 - 05:22 pm.

    //The founders did not want a national government supported “established church” such as certain states already had. But they did not have to “want” [an outwardly] Christian nation” they HAD one

    To have country with a lot of Christians in it is not the same as haveing a “Christian” nation number one. Number two, many of the founders were Deists, not Christians per se. Jefferson actually re-wrote the bible to essentially de-Christianize it. Third, you should look up the difference between “pagan” and “secular”. Finally, the fact that they clearly prohibited the establishment of religion indicates they had no intent to preserve the nation’s Christian character. The clearly wanted a nation where any religion could be practiced.

  58. Submitted by Paul Udstrand on 08/02/2010 - 08:58 am.

    //Christianity, with its assertion of the value of each individual person with “inalienable rights” from God, was recognized as the source of their most basic claims

    I just have to say this is a severe distortion of history. The idea that Christianity inspired Jefferson’s declaration is pure Christian fantasy pretending to be history.

    Again, the “God” Jefferson refers to is not Jesus Christ, it’s a Deist concept of God that has very little resemblance to the Christianity personal God. I leave it to you to look up Deism. Furthermore, the principle of inalienable rights is derived from Enlightenment thinkers such as Voltaire and John Locke, not from Christian theologians.

    Enlightenment thinking was generally a reaction against the religious intolerance and oppression that characterized Christianity at the time. Christians couldn’t even tolerate each other and fought wars for hundreds of years over different interpretations of the same Bible. When the Pilgrims landed in Plymouth the Spanish Inquisition was in full swing, and would be replicated in Salem a few decades later.

    The phrase: “life, liberty, and the pursuit of happiness” is not derived from the Christianity but from John Lock who’s phrase was actually: “life, ,health, liberty, or possessions.” In yet another blow to conservative revisionism “possessions” was dropped in favor of “happiness”, indicating some reservations regarding the supremacy of private property. Regarding religion itself, Lock developed a set of three basic principles: “(1) Earthly judges, the state in particular, and human beings generally, cannot dependably evaluate the truth-claims of competing religious standpoints; (2) Even if they could, enforcing a single “true religion” would not have the desired effect, because belief cannot be compelled by violence; (3) Coercing religious uniformity would lead to more social disorder than allowing diversity.” Sound familiar? Yes, this is the basis for the principle of separating church and state.

    The Enlightenment was a reaction to hundreds of years of Christian repression and intolerance, not an expression of Christian ideas. The Constitution is almost entirely based Enlightenment principles. The constitution establishes a liberal democracy, not a theocracy, and it’s no accident.

  59. Submitted by John E Iacono on 08/02/2010 - 10:33 am.

    Paul, in defense of my claim that the idea that each individual person has value and comes endowed by a creator with certain basic rights which no government — or church, for that matter — may infringe has its roots in Christian beliefs and the culture they created, I cite as current day examples the views and treatment of human beings in nations without that tradition.

    The Chinese, the jihadists, the muslim Africans in Sudan all suggest my assertion is true.

    That western civilization thinkers of the Enlightenment, rooted in this Christian culture, adopted these ideas while rejecting their religion origins does not disprove this. It only shows how deep the concepts had penetrated the thinking of western cultures.

    Please don’t invoke the ancient Greeks, whose notions about popular rule were also adopted: they had no such views about the worth of each individual person.

    I figured the use of the word “pagan” would bug you. You might want to check its entomology in your Merriam Webster.

  60. Submitted by Paul Udstrand on 08/02/2010 - 01:42 pm.

    //Paul, in defense of my claim that the idea that each individual person has value and comes endowed by a creator with certain basic rights which no government — or church, for that matter — may infringe has its roots in Christian beliefs and the culture they created, I cite as current day examples the views and treatment of human beings in nations without that tradition.

    Nice try John, but you can’t have it both ways. You can’t ignore hundreds of years of Christian intolerance and oppression and take credit for the Enlightenment principles that produced the secular governments you now applaud. Europe had it’s Christian Theocracies and their human rights records were just as if not more atrocious than those you mention. I know it’s tempting to step in and take credit for such a hugely successful ideological principle, but the fact remains that the concept of inalienable rights was a product of liberal intellectuals. By contrast, Christianity produced the divine rights of kings, and a manual for identifying, executing, and torturing non-believers. Yes, Christians certainly placed a value on individual human beings, in fact the Bible specifically discusses the value and reparations to be paid for various types of slaves and servants.

    I’m not saying Christianity is evil, or that it’s had nothing but a toxic effect on civic life throughout history. Liberal Christians have certainly played a large role in extending and fighting for human rights in the last few decades. Nevertheless the idea that the Enlightenment was a product of Christian domination rather than a reaction to it is Christian fantasy pretending to be history. You could clear things up considerably if you’d simply point out where in the Bible John Locke derived any of the his three principles regarding religion?

  61. Submitted by John E Iacono on 08/02/2010 - 05:09 pm.

    Playing by the rules,

    “Christian domination” is not the topic I write of. Christian core beliefs are.

    Changing the subject, no matter how subtley, only suggests my argument is valid.

  62. Submitted by Paul Udstrand on 08/02/2010 - 08:11 pm.

    //Changing the subject, no matter how subtley, only suggests my argument is valid.

    Sheesh, Eric writes an article about the Tenth Amendment, you start going on about Jesus… and you accuse ME of changing the subject. Nice.

  63. Submitted by Paul Udstrand on 08/19/2010 - 09:47 am.

    #31 “A living document” does NOT mean one that has been “reinterpreted” into meanings alien to its original meaning, as revisionists would make it.

    John this simply a round about way of redefining the concept of a living document to support the practice of treating it like scripture. In practice, any attempt to interpret the constitution in the light of contemporary issues and insights is considered “revisionism”. Nice try though in terms of rhetoric.

    #32 By way of an example, from Scripture:

    When Joshua fought the battle of Jericho, the text says “…and the sun stood still…” and the battle continued.

    Thank you so much. Elsewhere in this thread I’ve argued that one problem with the Tenther-coservative-Republican is that they treat the constitution as if it is scripture, and thereby transform it’s authors into deities. Here you demonstrating this phenomena.

    In a nutshell, scriptural treatments of secular documents like the constitution distort the discourse by pretending that ideology and revelation trump rationality. Scriptural interpretations allow so-called scholars to claim special knowledge. By laying claim to the notion they have direct knowledge descending from the founding fathers they displace history with historical fantasy.

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