Supreme Court, Originalism vs Activism by Bentree
(libertarian)
Tuesday, June 8, 2010
Progressive Intellectual Dysfunction
E.J. Dionne's Washington Post opinion this morning, June 6, has declared that retired Justice David Souters stem winding commencement speech at Harvard is in essence another shot at "Originalisms Fair Reading Doctrine". Justice Scalia has summed up his progressive opponents view of the Founding Documents as an organic document that "you know it morphs"
E.J. makes the point that ""Plessy v Ferguson" as pointed out by retired Justice Souter, is the very reason why originalist, Fair Reading Doctrine, is not reasonable." Their may be other examples of progressive obfuscation in an attempt to legitimize their lack of Constitutional principals but Souter offered up "Plessy" .
"(1896) U.S. Supreme Court decision that established the legality of racial segregation so long as facilities were "separate but equal." The case involved a challenge to Louisiana laws requiring separate railcars for African Americans and whites. Though the laws were upheld by a majority of 8 to 1, a famous dissent by John Marshall Harlan advanced the idea that the U.S. Constitution is "color-blind." The Plessy decision was overturned in 1954 by Brown v. Board of Education."
I think it must be said the it seems that both E.J. and Souter consider "Plessy" a creation of a new Principal in law. I doubt that a compromise of this nature can be construed to be an actual codification of principal as opposed to a simple coloring of a new less than constitutional decision to buy time.
Is the hidden or unspoken reason for the "Plessy" decision a compromise between a political "separate", and a strict "originalist" decision "Equal" based on the Bill of Rights and Founders intent. There was at the time a very real threat of intense civil strife or worse in the South. I grew up in the south during the 50's & 60's and Southerners weren't over the Civil War 58 years after "Plessy". Rightly or wrongly "Plessy" was a political compromise. In 1954 "Brown" was in reality a move back too "Originalism" not away from it. Former Justice Souter stated: "The language of the Constitution's guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be very hard to say that the obvious facts on which "Plessy" was based had changed," Souter continued "Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results," Right, right and right again. Is Souter an "originalist" as indicated by his support of "Brown" or was he citing Brown as an example of justifiable "Morphing" in defense of charges of Activism by the "originalist" Scalia. This could explain his attack on Justice Scalia. Could it be that Souter doesn't understand that "Brown" was actually a move back to "originalism" or did Souter use "Brown" to obviscate and confuse the issue? I think that Souter actually believes that "Brown" established new principals based on progressive enlightenment, "Enlightenment" beyond the "Founders" It appears that Souters Ideology prevents his ability too: A "Fair Reading" of:
How in the name of Dick Austins hat band do you get from "Plessy" to Brown v Board of Education without recognizing it as a move toward Principals of original intent and not justifiable "Activism" based on the progressive principals to which E.J. And Souter hold so dear.
E.J. further sites in his article a Post article by Joesph Ellis where he states "The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document. Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence. Even more disconcerting is the fact that the very justices most disposed toward wrapping their opinions in the protective armor of original intent have consistently voted in support of the conservative political agenda championed by the Republican Party."
This is a bitter progressive, secular partisan attack on the Founders by Ellis. Ellis shows his contempt for the Funders and the Constitution then turns right around and quotes Thomas Jefferson: "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before." Are Progressives using this quote as a mandate for change? Jefferson doesn't mandate change, he allows for it. He was saying you may, not that you must. His belief in choice, is the point!. So exactly how would the eminent "progressives" E.J. Dionne and former Justice Souter change the Constitution and Bill of Rights?
If progressives truly believe that we as a nation have outgrown the Founders Principals, then maybe it is time to consider changes. So here's your opportunity stop sniping at the Founders and put forth your ideas, your progressive principals. Bring these principals out in the open and lets debate them, lets shine the light of truth on all these Principals and identify them for what they are. Including the Founders, Capitalism, Communism, Facism, Collectivism, do these Principals provide for and protect the individual rights of man and restrict the power of governance better than those created by our Founding Fathers? If so which ones, drag them out and lets have a look at them. I trust the people, once they hear and are educated to the truth, well there you go. The truth will set you free if you accept it and take responsibility for it. That is the rub isn't it, your dysfunction.
Souter again: "Did the judges of 1954 cross some limit of legitimacy into lawmaking by stating a conclusion that you will not find written in the Constitution?" Souter asked rhetorically. Here Souters admits the originalism of "Brown". E.J. Further states that "The core problem with originalism is that it overlooks what the historian Gordon Wood has observed about the Founders' work: "that it is exceedingly difficult to discern the "true meaning" of the Constitution since it is the product "not of closet philosophizing but of contentious political polemics". So, closet philosophizing by inference is far superior too public contentious debate. Intellectuals debate in a closet, in secret because today's intellectuals have disdain for Mr. and Mrs average America. Why? Because they know best.
Power always thinks it has a great soul and vast views beyond the comprehension of the weak. John Adams
A polemic is a form of dispute, wherein the main efforts of the disputing parties are aimed at establishing their own point of view regarding an issue. ... According to Gordon Wood, this is a core problem? The results of all these polemics were our Nations Founding Documents. Clearly written with intent duly noted.
These gentlemen "the Founders" were risking "everything". Uniquely they where not motivated by greed or lust for power. Rhetorical war was the rule of the day. They cared about their own Liberty and posterity. Principals where not easily accepted, they had to be fought for, these principals that gave birth to individual Liberty, religious freedom, the right to choose your path to happiness, private property, free speech, freedom of the press and association and equality under the law. Throw in the Right of self defense. This, is a problem according to Gordon Wood "historian" ?
Firearms are second only to the Constitution in importance; they are the peoples' liberty's teeth. George Washington
Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms. James Madison
Professor Wood also said in an interview: "The American Revolution not only legally created the United States, but created almost everything we Americans believe. Our noblest ideals, our highest aspirations. Our belief in liberty, equality, Constitutionalism, and the well-being of ordinary people all came out of the American Revolution. Whatever glue we have that holds us together is a consequence of the American Revolution." [link edited for length]
Now that"s a statement I can get behind, it lacks a mention of the "Founders" but is a tribute to the results of polemic debate on the part of our Founders. Hallelujah, brothers. If you are confused by the source, remember "progressive intellectual dysfunction" and a blind squirrel.
E.J. believes that Souter is right in saying: "the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well." Are Americans spoiled? Yes. Are they entitled to Equality? Yes. Are they entitled to Equality of outcome? No.
Souter continues: "We want not only liberty but equality as well", I hate to break it to you progressives, the Founders never envisioned the guarantee of equal outcomes, just the the right of choice to pursue it. So their you go, Americans are entitled to equality under the law and equality of outcome according to progressives. This is where progressives get their nose under the tent. "Social Justice", no where in The Founding Documents does it say that Americans have a right to outcome, only the right to pursue a path, hence "The Pursuit of Happiness". I don't know if the founders ever heard the term "Social Justice" but they knew and understood the concept. They knew that entitled outcomes and Liberty can not coexist. What do "Progressives believe? Statism, subservience of individual rights , redistribution of wealth the welfare state, all hallmarks of a collective state, a Marxist state. Is this what Souter and Dionne believe in? If they believe in Social Justice, it is.
The reality of the times in which the founders lived , as British subjects, they were forced to accept a specific religion. These men, the Founders of this nation were for the most part religious men and they knew the difference between freedom "of " and freedom "from".
It is impossible to rightly govern a nation without God and the Bible. George Washington
Souter goes on to say: "Because these desires clash, courts are "forced to choose between them, between one constitutional good thing and another one." Souter's view admits that this is what judges do. E.J. adds that "Originalists pretend they're not choosing." E.J. What a load of bovine scatology, of course they are choosing, they just are not making choices that are acceptable to you.. When "originalist" make their choices based on The Constitution and the Bill of Rights rather than on the basis of the progressive principals in your belief system, they are ratifying those Constitutional Principals not creating new progressive principals of governance.
I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man. Thomas Jefferson
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