Aristotle says that Man is a "human animal". Because of this man has "aggression". Yet the level of aggression one has is no matter in judging human action, because we have free will.
This means that no matter how we feel, no matter for what reason- it is our choice to act from this feeling, or with this feeling, to do whatever we wish to try. Man can sublimate his aggression, can channel his aggression, or through transformation can change his aggression.
Therefore it matters not what he feels, but how he acts and what he does. Then his aggression gets: 1) masked through sublimation which buries it; 2) channeled and focused through his power- thus transformed- into a positive endeavour; or 3)through his power dissolved into nothing.
In both the latter cases, a person can possess a "monstrous" aggression throughout all his body and all his thinking- but NOT in his heart. Therefore his aggression can become transformed each and every day into good, into love, or through forgiveness into nothing. It is then invisible in the record of his action, but shows in the intensity and force of his action, through the excellence in performance, and through the intensity of his love for others.
Because this aggression can be changed there is nothing to have fear of, and nothing to hide from others, because it is channeled into good, into love, or into work. Someone like this is just fine with every part of who he is, because it is from our acts towards others that we are judged.
This power of the tranformation of aggression, and suffering, through the power of forgiveness and free will can become a daily healing of the self. Through the transformational power of free will, we can choose to change and perform the behavior of who we want to be, and perform the behavior of what we want to do.
Man can change because Man has the power of transformation. Man has free will.
Sunday, December 16, 2007
Thursday, December 13, 2007
Transparency - One of the Responsibilities of both Government and Citizenship
Why transparency of government is so important to citizens, and coversely why it is a responsibility of citizens to honestly and faithfully go about their lives with each other and with their government, has to do with the freedom of the individual and the source of his or her action, and is presented in the paragraph below by Hayek.
From "The Constitution of Liberty" by Friedrich A. Hayek
"We can probably include all forms of violence under coercion, or at least maintain that a successful prevention of coercion will mean the prevention of all kinds of violence. There remains, however, one other kind of harmful action which is generally thought desirable to prevent and at first may seem distinct. This is fraud and deception. Yet, though it would be straining the meaning of words to call them "coercion," on examination it appears that the reasons why we want to prevent them are the same as those applying to coercion. Deception, like coercion, is a form of manipulating the data on which a person counts, in order to make him do what the deceiver wants him to do. Where it is successful, the deceived becomes in the same manner the unwilling tool, serving another man's ends without advancing his own. Though we have no single word to cover both, all we have said of coercion applies equally to fraud and deception."
From "The Constitution of Liberty" by Friedrich A. Hayek
"We can probably include all forms of violence under coercion, or at least maintain that a successful prevention of coercion will mean the prevention of all kinds of violence. There remains, however, one other kind of harmful action which is generally thought desirable to prevent and at first may seem distinct. This is fraud and deception. Yet, though it would be straining the meaning of words to call them "coercion," on examination it appears that the reasons why we want to prevent them are the same as those applying to coercion. Deception, like coercion, is a form of manipulating the data on which a person counts, in order to make him do what the deceiver wants him to do. Where it is successful, the deceived becomes in the same manner the unwilling tool, serving another man's ends without advancing his own. Though we have no single word to cover both, all we have said of coercion applies equally to fraud and deception."
Wednesday, December 12, 2007
The Value in Being a Good Citizen- From "Democracy in America"
The value in being a good citizen, following the rule of law, and the benefit of living in a democracy.
From 'Democracy in America' by Alexis De Tocqueville,- part I, 'Notion of Rights'
"After the general idea of virtue, I know no higher principle than that of right"....
"The man who submits to violence is debased by his compliance; but when he submits to that right of authority which he acknowledges in a fellow-creature, he rises in some measure above the person who gives the command. There are no great men without virtue; and there are no great nations,- it may also be added, there would be no society,- without respect for right; for what is a union of rational and intelligent beings who are held together only by the bond of force?..."
"The government of the democracy brings the notion of political rights to the level of the humblest citizens, just as the dissemination of wealth brings the notion of property within the reach of all men; to my mind, this is one of its greatest advantages".
From 'Democracy in America' by Alexis De Tocqueville,- part I, 'Notion of Rights'
"After the general idea of virtue, I know no higher principle than that of right"....
"The man who submits to violence is debased by his compliance; but when he submits to that right of authority which he acknowledges in a fellow-creature, he rises in some measure above the person who gives the command. There are no great men without virtue; and there are no great nations,- it may also be added, there would be no society,- without respect for right; for what is a union of rational and intelligent beings who are held together only by the bond of force?..."
"The government of the democracy brings the notion of political rights to the level of the humblest citizens, just as the dissemination of wealth brings the notion of property within the reach of all men; to my mind, this is one of its greatest advantages".
Tuesday, December 11, 2007
First Amendment Free Exercise Clause-"Some Keep the Sabbath"..
The first amendment protects freedom of the exercise of religion in the United States, which means citizens can demonstrate their religious beliefs in different ways. My favorite poem expressing this right and deeply shared sentiment, and a more private approach to religious belief is in the famous poem by Emily Dickinson- "Some Keep the Sabbath Going to Church".
"Some keep the Sabbath going to Church-
I keep it, staying at Home-
With a Bobolink for a Chorister-
And an Orchard, for a Dome-
Some keep the Sabbath in Surplice-
I just wear my Wings-
And instead of tolling the Bell, for Church,
Our little Sexton-Sings.
God preaches, a noted Clergyman-
And the sermon is never long,
So instead of getting to Heaven, at last-
I'm going, all along".
"Some keep the Sabbath going to Church-
I keep it, staying at Home-
With a Bobolink for a Chorister-
And an Orchard, for a Dome-
Some keep the Sabbath in Surplice-
I just wear my Wings-
And instead of tolling the Bell, for Church,
Our little Sexton-Sings.
God preaches, a noted Clergyman-
And the sermon is never long,
So instead of getting to Heaven, at last-
I'm going, all along".
Monday, December 10, 2007
The Description of the Truth of This Time in Our Country's History
The description of the truth of this time; the transition from the 20th century through the first decade of the 21st century; in our country's history will need no great and intricate new philosophy of government, nor any new grand theory of history, nor any new dazzling tool of economic theory. The description of the truth of this time in our country's history has already been written and lies plainly in the words of Thomas Paine, from the "Rights of Man".
And so it was that...
"If there is a country in the world, where concord, according to common calculation, would be least expected, it is America. Made up, as it is, of people from different nations,* accustomed to different forms and habits of government, speaking different languages, and more different in their modes of worship, it would appear that the union of such a people was impracticable; but by the simple operation of constructing government on the principles of society and the rights of man, every difficulty retires, and all the parts are brought into cordial unison. There, the poor are not oppressed, the rich are not priviledged. Industry is not mortified by the splendid extravagance of a court rioting at its expense...."
"A metaphysical man, like Mr.(Edmund)Burke, would have tortured his invention to discover how such a people could be governed. He would have supposed that some must be managed by fraud, others by force, and all by some contrivance; that genius must be hired to impose upon ignorance, and show and parade to fascinate the vulgar. Lost in the abundance of his researches, he would have resolved and re-resolved, and finally overlooked the plain and easy road that lay directly before him." pgs. 134-135
The "Rights of Man" was presented to George Washington with these words:
"To George Washington, President of the United States of America
Sir,
I present you a small Treatise in defence of those Principles of Freedom which your exemplary Virtue hath so eminently contributed to establish.- That the Rights of Man may become as universal as your Benevolence can wish, and that you may enjoy the Happiness of seeing the New World regenerate the Old, is the Prayer of..
Sir,
Your much obliged, and Obedient humble Servant.
THOMAS PAINE"
And so it was that...
"If there is a country in the world, where concord, according to common calculation, would be least expected, it is America. Made up, as it is, of people from different nations,* accustomed to different forms and habits of government, speaking different languages, and more different in their modes of worship, it would appear that the union of such a people was impracticable; but by the simple operation of constructing government on the principles of society and the rights of man, every difficulty retires, and all the parts are brought into cordial unison. There, the poor are not oppressed, the rich are not priviledged. Industry is not mortified by the splendid extravagance of a court rioting at its expense...."
"A metaphysical man, like Mr.(Edmund)Burke, would have tortured his invention to discover how such a people could be governed. He would have supposed that some must be managed by fraud, others by force, and all by some contrivance; that genius must be hired to impose upon ignorance, and show and parade to fascinate the vulgar. Lost in the abundance of his researches, he would have resolved and re-resolved, and finally overlooked the plain and easy road that lay directly before him." pgs. 134-135
The "Rights of Man" was presented to George Washington with these words:
"To George Washington, President of the United States of America
Sir,
I present you a small Treatise in defence of those Principles of Freedom which your exemplary Virtue hath so eminently contributed to establish.- That the Rights of Man may become as universal as your Benevolence can wish, and that you may enjoy the Happiness of seeing the New World regenerate the Old, is the Prayer of..
Sir,
Your much obliged, and Obedient humble Servant.
THOMAS PAINE"
Saturday, December 1, 2007
The Beauty Present in Everyday Life
In the Critique of Judgment Kant describes what it means to say that something is beautiful. He says that the beautiful is a kind of reordering,- through a touching of the supersensible substrate- (beyond the sensible) the feeling of which is what we know as beautiful. It is one way of saying that when we feel beauty, we are touched by god.
For me the examples of beauty I have been privileged to witness are below.
A) Kant says that in human art that which is beautiful is also what is “exemplary”, an example and ideal of the combination of capability, sensibility, and technique, that when experienced produces the feeling of beauty in us. We know this beauty through the work of history’s famous masters, in those celebrated as the world’s finest.
1) The magnificent paintings of Marc Chagall in the Musee National de Marc Chagall- “La Message Biblique”, off of Rue Cimiez in Nice. My favorite is the painting “Abraham and the Three Angels”. It is much larger than appears in books and expresses with awe and reverence the theme of the divine captured through the figures in much of Chagall’s work, and in the use of color in all of his work.
2) The impressionist collection at the Art Institute of Chicago.
3) Itzhak Perlman playing solo at the Chicago Symphony Orchestra with Daniel Barenboim conducting. A truly magnificent performance and virtuosity without compare.
4) Yo Yo Ma at Ravinia.
5) The architecture of Helmut Jahn and Frank Geary.
6) The skylines of the cities of Chicago and Seattle.
7) Notre Dame in Paris, Notre Dame in Vieux Montreal, the Rockefeller Chapel at the University of Chicago.
Most of us personally witness these kinds of beauty as “extravagances” and “rarities”. Just as rare are the beauty found in the far away places of nature that we see just as less often.
1) The Dancing fires of the sky that reach to the firmament of the Northern Lights.
2) The spectacular color of the Smokey Mountains in the third week of fall in the drive along the Blue Ridge Parkway from eastern Tennessee to North Carolina, and in the drive from Eastern Tennessee to Ashville North Carolina.
3) The sweep of the bay of angels in Nice. The cliffs of Nice and Ville Franche-Sur-Mer, and the drive on the pas corniche between Ville Franche and Monte Carlo.
4) The iridescent blue of the Caribbean.
5) The spectacular colors of scuba diving off of Cozumel.
Then there is the beauty, now common and accessible to us, brought to us through the miracle of electronic media.
1) A documentary of Picasso showing a demonstrated ability to paint that is beyond belief.
2) Beethoven’s ninth symphony, Tchaikovsky’s 4th symphony, Mahler’s ninth symphony, and the entire soundtrack of the film “Amadeus” containing the music of Mozart.
3) The incomparable acting of Meryl Steep in “Sophie’s Choice”, Julia Roberts in “Erin Brockovich”, Hallie Berry in “Monster’s Ball”, Denzel Washington in “Glory”, Tom Hanks in “Philadelphia”, Shirley McClaine in “Terms of Endearment”, Marlon Brando in “the Godfather”, Al Pacino in “Looking for Richard”, and Charlize Theron in “Monster”, and of course others.
4) The incomparable directing of Steven Spielberg, Martin Scorcese, Francis Ford Coppola, and Sidney Pollack.
8) The literature of Gabriel Garcia-Marquez, Charles Dickens, William Faulkner, Saul Bellow, and Cormac McCarthy. The poetry of Walt Whitman, Robert Frost and Emily Dickinson.
5) The Philosophical constructions of Kant, Hegel, Levinas, and Ricoeur. The Theology of St. Augustine, Jurgen Moltmann, St. Paul, St. John, and Pope John Paul II (The Great)
6) The great singers- too many to mention. For me especially the great female voices which shower down like the voices of angels.
And of course many others brought to us by electronic media.
Deeper and more dear to us is the beauty of nature found in the Areas surrounding places we love. For me the drive on highway J in the Mark Twain national forest, through the ridge valleys that appear to depict the pastoral beauty and tranquility of 100 years ago along highway j.
The drive from Morrisonville in central Illinois, which has the flattest farmland. Because it is almost all farmland, the scene of these drives is always a blanket of color that stretches are far as the eye can see. Green, green, green of the spring through to mid-summer. Golden, golden, golden in the fall. The richest black, black, black after harvest. The shimmering, sparkling and blinding white, white, white when fresh snow covers the fields and the sky has no clouds. For me, and probably most others I know, these beautiful scenes found are the most beautiful places we know, those that can be found near to us, because we are home or are going home.
The most beautiful words to us as Americans are the words of our Declaration of Independence and Constitution, and the writings of Jefferson, Adams, Hamilton and Madison- of the rule of law and nonviolent change through the democratic process- through elections, and legislation.
The most beautiful and profound words I know are the words of Christ and the theology of nonviolent Christian forgiveness in the New Testament of the Bible. To be a follower of Christ, to be a true Christian, means to follow these words in your daily lives and acts- to give the best of yourself in everything you do- with our family, with our work, and with our fellow citizens and neighbors.
The most beautiful thing I have ever experienced, by far, is the smiling face and the presence of someone I love.
The Beauty of the World, and thus the Beauty of God, are right in front of each of us, and are present to each of us, in various ways, and in the most common ways, every single day.
For me the examples of beauty I have been privileged to witness are below.
A) Kant says that in human art that which is beautiful is also what is “exemplary”, an example and ideal of the combination of capability, sensibility, and technique, that when experienced produces the feeling of beauty in us. We know this beauty through the work of history’s famous masters, in those celebrated as the world’s finest.
1) The magnificent paintings of Marc Chagall in the Musee National de Marc Chagall- “La Message Biblique”, off of Rue Cimiez in Nice. My favorite is the painting “Abraham and the Three Angels”. It is much larger than appears in books and expresses with awe and reverence the theme of the divine captured through the figures in much of Chagall’s work, and in the use of color in all of his work.
2) The impressionist collection at the Art Institute of Chicago.
3) Itzhak Perlman playing solo at the Chicago Symphony Orchestra with Daniel Barenboim conducting. A truly magnificent performance and virtuosity without compare.
4) Yo Yo Ma at Ravinia.
5) The architecture of Helmut Jahn and Frank Geary.
6) The skylines of the cities of Chicago and Seattle.
7) Notre Dame in Paris, Notre Dame in Vieux Montreal, the Rockefeller Chapel at the University of Chicago.
Most of us personally witness these kinds of beauty as “extravagances” and “rarities”. Just as rare are the beauty found in the far away places of nature that we see just as less often.
1) The Dancing fires of the sky that reach to the firmament of the Northern Lights.
2) The spectacular color of the Smokey Mountains in the third week of fall in the drive along the Blue Ridge Parkway from eastern Tennessee to North Carolina, and in the drive from Eastern Tennessee to Ashville North Carolina.
3) The sweep of the bay of angels in Nice. The cliffs of Nice and Ville Franche-Sur-Mer, and the drive on the pas corniche between Ville Franche and Monte Carlo.
4) The iridescent blue of the Caribbean.
5) The spectacular colors of scuba diving off of Cozumel.
Then there is the beauty, now common and accessible to us, brought to us through the miracle of electronic media.
1) A documentary of Picasso showing a demonstrated ability to paint that is beyond belief.
2) Beethoven’s ninth symphony, Tchaikovsky’s 4th symphony, Mahler’s ninth symphony, and the entire soundtrack of the film “Amadeus” containing the music of Mozart.
3) The incomparable acting of Meryl Steep in “Sophie’s Choice”, Julia Roberts in “Erin Brockovich”, Hallie Berry in “Monster’s Ball”, Denzel Washington in “Glory”, Tom Hanks in “Philadelphia”, Shirley McClaine in “Terms of Endearment”, Marlon Brando in “the Godfather”, Al Pacino in “Looking for Richard”, and Charlize Theron in “Monster”, and of course others.
4) The incomparable directing of Steven Spielberg, Martin Scorcese, Francis Ford Coppola, and Sidney Pollack.
8) The literature of Gabriel Garcia-Marquez, Charles Dickens, William Faulkner, Saul Bellow, and Cormac McCarthy. The poetry of Walt Whitman, Robert Frost and Emily Dickinson.
5) The Philosophical constructions of Kant, Hegel, Levinas, and Ricoeur. The Theology of St. Augustine, Jurgen Moltmann, St. Paul, St. John, and Pope John Paul II (The Great)
6) The great singers- too many to mention. For me especially the great female voices which shower down like the voices of angels.
And of course many others brought to us by electronic media.
Deeper and more dear to us is the beauty of nature found in the Areas surrounding places we love. For me the drive on highway J in the Mark Twain national forest, through the ridge valleys that appear to depict the pastoral beauty and tranquility of 100 years ago along highway j.
The drive from Morrisonville in central Illinois, which has the flattest farmland. Because it is almost all farmland, the scene of these drives is always a blanket of color that stretches are far as the eye can see. Green, green, green of the spring through to mid-summer. Golden, golden, golden in the fall. The richest black, black, black after harvest. The shimmering, sparkling and blinding white, white, white when fresh snow covers the fields and the sky has no clouds. For me, and probably most others I know, these beautiful scenes found are the most beautiful places we know, those that can be found near to us, because we are home or are going home.
The most beautiful words to us as Americans are the words of our Declaration of Independence and Constitution, and the writings of Jefferson, Adams, Hamilton and Madison- of the rule of law and nonviolent change through the democratic process- through elections, and legislation.
The most beautiful and profound words I know are the words of Christ and the theology of nonviolent Christian forgiveness in the New Testament of the Bible. To be a follower of Christ, to be a true Christian, means to follow these words in your daily lives and acts- to give the best of yourself in everything you do- with our family, with our work, and with our fellow citizens and neighbors.
The most beautiful thing I have ever experienced, by far, is the smiling face and the presence of someone I love.
The Beauty of the World, and thus the Beauty of God, are right in front of each of us, and are present to each of us, in various ways, and in the most common ways, every single day.
Sunday, November 25, 2007
"Sophie's Choice" and the Logic of Sacrifice
I saw a promo for the movie “Sophie’s Choice” the other day. This brings to mind what I call the logic of sacrifice, of -at that moment -choosing the lesser of two inescapable evils.
It is the story of a holocaust survivor played by Meryl Streep, who when entering Auschwitz with her two children was presented with a horrific choice. (thus the reason for the title of the movie) Sophie, at the point of the gun of a German guard, is forced to choose between which of her two children is sent immediately to the Nazi gas chambers and die. Sophie initially replies that she can’t choose, but the guard then demands that if she does not, he will kill all of them right there. Sophie makes her choice.
What a horrific predicament! The audience has no anger for Sophie, but just sympathy. The actual behavior she presents is completely counterintuitive and beyond the scope of any normal behavior. Sophie chooses to have one of her children killed!
Without witnessing the threat on film, when seen solely from the view that one child was chosen to be killed by her mother, our reaction is- “oh my god, who would do that!?” Without seeing the presentation of the threat of certain death to the rest of the family, such behavior is absolutely unbelievable.
Under such a circumstance what would you do? What would all of your family do, to save yourselves? Would you sacrifice one member to save the rest from certain death? Would you lie? Would all of you lie?
When looked at in complete context what Sophie thought she was doing was choosing to save her other child and herself. She chose the lesser of two inescapable evils, doing something completely against a mother’s instinct, and completely against decent human impulses, for the benefit of the rest.
When looked at from the viewpoint of someone in that situation, what Sophie chose makes perfect sense and follows a perfect logic.
Sophie had no idea from previous experience that the choice before her was merely a phantom- the presentation of a false reality. We know in retrospect that the Germans killed everyone they could at Auschwitz. Armed with this knowledge, Sophie’s actual choice may have been different.
Armed with the knowledge that the possibility of safety for the other members was a lie, Sophie could either hope that all wouldn’t be killed and choose one of her children as she did, or Sophie could see that the death promised was actually the truth, and that it was, in actuality, promised for all. With this knowledge Sophie could choose to stand up to them. In the movie it was presented in a way that Sophie didn’t- and couldn’t- know that the latter option was available.
This is the logic of sacrifice that applies to all of us, of choosing completely counterintuitive behavior in the face of inescapable evil. It is the choosing of the lesser part of two inescapable evils, because of the threat of certain death, for the benefit of the rest.
It is the story of a holocaust survivor played by Meryl Streep, who when entering Auschwitz with her two children was presented with a horrific choice. (thus the reason for the title of the movie) Sophie, at the point of the gun of a German guard, is forced to choose between which of her two children is sent immediately to the Nazi gas chambers and die. Sophie initially replies that she can’t choose, but the guard then demands that if she does not, he will kill all of them right there. Sophie makes her choice.
What a horrific predicament! The audience has no anger for Sophie, but just sympathy. The actual behavior she presents is completely counterintuitive and beyond the scope of any normal behavior. Sophie chooses to have one of her children killed!
Without witnessing the threat on film, when seen solely from the view that one child was chosen to be killed by her mother, our reaction is- “oh my god, who would do that!?” Without seeing the presentation of the threat of certain death to the rest of the family, such behavior is absolutely unbelievable.
Under such a circumstance what would you do? What would all of your family do, to save yourselves? Would you sacrifice one member to save the rest from certain death? Would you lie? Would all of you lie?
When looked at in complete context what Sophie thought she was doing was choosing to save her other child and herself. She chose the lesser of two inescapable evils, doing something completely against a mother’s instinct, and completely against decent human impulses, for the benefit of the rest.
When looked at from the viewpoint of someone in that situation, what Sophie chose makes perfect sense and follows a perfect logic.
Sophie had no idea from previous experience that the choice before her was merely a phantom- the presentation of a false reality. We know in retrospect that the Germans killed everyone they could at Auschwitz. Armed with this knowledge, Sophie’s actual choice may have been different.
Armed with the knowledge that the possibility of safety for the other members was a lie, Sophie could either hope that all wouldn’t be killed and choose one of her children as she did, or Sophie could see that the death promised was actually the truth, and that it was, in actuality, promised for all. With this knowledge Sophie could choose to stand up to them. In the movie it was presented in a way that Sophie didn’t- and couldn’t- know that the latter option was available.
This is the logic of sacrifice that applies to all of us, of choosing completely counterintuitive behavior in the face of inescapable evil. It is the choosing of the lesser part of two inescapable evils, because of the threat of certain death, for the benefit of the rest.
Friday, November 23, 2007
A Very Good Thanksgiving
It was a very good thanksgiving yesterday. We went to my nephew’s house, enjoyed our company, ate some good food, and talked. This was one of those rare occasions where you actually have a meaningful conversation with your family, and they show real understanding about the personal struggles and successes of your life. You also can give them updates about what is going on in your life with a good attitude, and because they care about you, with this new information, this inspires them about the possibilities open to their own futures.
Like any good get together, the conversation and laughter in the beginning was almost raucous. Some people get disturbed by the cacophony of such noises, don’t like crowds, and don’t see themselves included. For me however, I am fine with the haphazard inclusion and isolation, because I like and understand crowds. Also the cacophony from the gathering is from the voices I love, and therefore it is all music to me. I for one; in such a spectacle; could easily see the love in their eyes, and could see in their eyes even a sense of pride to be part of our family.
Yes, thanksgiving is a day that can bring everyone together, confirm that relationships have been restored and strengthened, and restore spirits. It is for these blessings that on thanksgiving, and really everyday, we thank god.
Like any good get together, the conversation and laughter in the beginning was almost raucous. Some people get disturbed by the cacophony of such noises, don’t like crowds, and don’t see themselves included. For me however, I am fine with the haphazard inclusion and isolation, because I like and understand crowds. Also the cacophony from the gathering is from the voices I love, and therefore it is all music to me. I for one; in such a spectacle; could easily see the love in their eyes, and could see in their eyes even a sense of pride to be part of our family.
Yes, thanksgiving is a day that can bring everyone together, confirm that relationships have been restored and strengthened, and restore spirits. It is for these blessings that on thanksgiving, and really everyday, we thank god.
Wednesday, November 21, 2007
Thoughts for Thanksgiving- What it Means to Give the Best of Ourselves
Some thoughts for this thanksgiving, on what it means to give the best of ourselves in everything we do.
I wrote in a previous blog:
"So living our lives the best we can and giving the best of ourselves in everything we do- in our work, with our friends, loved ones, and fellow citizens- that is the way to battle the ugliness described in the article of which my friend refers".
And how do we do this, when at times the world can treat each of us so brutally- through forgiveness, in order to walk forward to the possibilities in the future with an open heart.
"The real fecundity of the will, its magic and its transformative character is shown when malice is transformed in the ethical in the act of human forgiveness. In the divine-like sweep of forgiveness, malice is transformed into the Ethical. It is here where the act becomes relation, in the negative act of anti-violence. Here is where we create something, ex nihilo, in an ethical effort towards another. It is how man lives from pain. It is context meeting its opposite in a moment where man becomes/ approaches, God; and God becomes/approaches man. It is formation and reformation, an emergence and affirmation simultaneously.
Forgiveness is the only beauty, the only creation".
(from The Kant Variations, the Chapter- Emmanuel Levinas and the Love of Knowledge)
Everyone- have a warm and safe thanksgiving.
I wrote in a previous blog:
"So living our lives the best we can and giving the best of ourselves in everything we do- in our work, with our friends, loved ones, and fellow citizens- that is the way to battle the ugliness described in the article of which my friend refers".
And how do we do this, when at times the world can treat each of us so brutally- through forgiveness, in order to walk forward to the possibilities in the future with an open heart.
"The real fecundity of the will, its magic and its transformative character is shown when malice is transformed in the ethical in the act of human forgiveness. In the divine-like sweep of forgiveness, malice is transformed into the Ethical. It is here where the act becomes relation, in the negative act of anti-violence. Here is where we create something, ex nihilo, in an ethical effort towards another. It is how man lives from pain. It is context meeting its opposite in a moment where man becomes/ approaches, God; and God becomes/approaches man. It is formation and reformation, an emergence and affirmation simultaneously.
Forgiveness is the only beauty, the only creation".
(from The Kant Variations, the Chapter- Emmanuel Levinas and the Love of Knowledge)
Everyone- have a warm and safe thanksgiving.
Saturday, November 17, 2007
We Battle Ugliness Best By Giving the Best of Ourselves
My good friend sent me an email on the ugly story of an intentional myspace hoax perpetrated by adult neighbors to torment an O'Fallon Missouri girl that at least contributed, if not directly led, to her suicide. It is one of the most vile stories of human ugliness in recent memory in the St. Louis area.
How we battle such ugliness is by living our lives with a good heart. Yes, at times people can be vile. I believe though in that we should live our lives the best we can, and treat people with respect. This is what our justice system really stands for- what it protects- our common goodness.
So it is by living our lives the best we can and by giving the best of ourselves in everything we do- in our work, with our friends, loved ones, and fellow citizens- that we most effectively battle the ugliness described in the article of which my friend refers.
How we battle such ugliness is by living our lives with a good heart. Yes, at times people can be vile. I believe though in that we should live our lives the best we can, and treat people with respect. This is what our justice system really stands for- what it protects- our common goodness.
So it is by living our lives the best we can and by giving the best of ourselves in everything we do- in our work, with our friends, loved ones, and fellow citizens- that we most effectively battle the ugliness described in the article of which my friend refers.
Wednesday, November 7, 2007
The Lie Aggressors Tell Themselves- And Tell Others
Secretary of Defense McNamara once posed a question:
"How much evil must we perpetrate before we are able to do "good"?"
This question reveals three important aspects of the view and disposition of aggressors:
1) The need for total domination of others by the 'control freaks' in charge, and the feeling that aggression is warranted, is necessary, to achieve it. The U.S. at that time, and at this time, had superior military power. Those in charge itched to use it then to prove their superiority, and itch to use it now- to prove their 'greatness' by domination.
2) It is the lie the aggressors of history tell themselves to cloak their aggression and violence in goodness and legitimacy: To sublimate- make themselves feel better about- what they do to others. Regardless of the pain they cause, and the evil they do, there is an overwhelming need to see it as 'good' or as an instrument of good. It is the same dynamic and attitude of a 'wife beater', who in his mind rationalizes that it was the actions of the wife that 'caused' him to beat her.
3) These people who have the need for domination have no clue about how to do 'good' for others, and history always bears it out. The oppression never stops but expands, and there is always another enemy where to direct the aggression. They have no empathy and see no commonality for others lesser than themselves- the citizens, the people. If they did there would be no need for the repression in the first place. The good they want to do is never found and never done, because it lies not in their hearts.
McNamara's question reveals the lie at the heart, and in the heart, of aggressors.
"How much evil must we perpetrate before we are able to do "good"?"
This question reveals three important aspects of the view and disposition of aggressors:
1) The need for total domination of others by the 'control freaks' in charge, and the feeling that aggression is warranted, is necessary, to achieve it. The U.S. at that time, and at this time, had superior military power. Those in charge itched to use it then to prove their superiority, and itch to use it now- to prove their 'greatness' by domination.
2) It is the lie the aggressors of history tell themselves to cloak their aggression and violence in goodness and legitimacy: To sublimate- make themselves feel better about- what they do to others. Regardless of the pain they cause, and the evil they do, there is an overwhelming need to see it as 'good' or as an instrument of good. It is the same dynamic and attitude of a 'wife beater', who in his mind rationalizes that it was the actions of the wife that 'caused' him to beat her.
3) These people who have the need for domination have no clue about how to do 'good' for others, and history always bears it out. The oppression never stops but expands, and there is always another enemy where to direct the aggression. They have no empathy and see no commonality for others lesser than themselves- the citizens, the people. If they did there would be no need for the repression in the first place. The good they want to do is never found and never done, because it lies not in their hearts.
McNamara's question reveals the lie at the heart, and in the heart, of aggressors.
Sunday, November 4, 2007
What is the Good That Our Country's Greatness Aspires to Serve?
Some will say that in matters of purpose and efficacy that all individuals are not born equal- that some possess innate gifts and talent that others do not. In some there is a facility for math and science and the understanding of abstract and complex equations, in others the facility for organization, for medicine. In others there is a facility for music, in others for languages or painting. In athletics there is the phrase `You can not put in what God has left out'.
Sometimes the role 'chooses you' as the facility comes so easily, so naturally to the level of function- absent in almost all other people. Difficulty in function is overwhelmed by gift, by the rare facility, by the uncommon, so much so that indeed it is not even the same level of difficulty of which two people speak. For every person on earth, to some extent this is so.
No Race has advantage over any other here, nor does either sex have advantage, nor does any Nation.
Perhaps as a man I find that I possess a gift of function- why must I demand more money from this when this is precisely the level I am good at- because I can master more functions than others? Why must I deny others of the dignity of life when I am merely meeting up to the level of my own capability? If I can try more- shouldn't I? If I can do more- shouldn't I? if I can make more for others shouldn't I?
But as we now clearly hold our temporary domain over the world, dominion is only a question in the order among men, and has no real function in the survival of the species. That question has been answered, that challenge has been met.
The level of competence, function, and power of a higher position should be compensation in itself. The work is more challenging, more interesting, more engaging, and the individual so capable. On line monitoring markets in London at 5:30 a.m., meeting with managers of different properties discussing systems at 9:00, at 10:00 overlooking reports and the details in the system-looking for glitches; phone calls to subordinates giving feedback and then monitoring decision processes through 11:00....
Perhaps as a man I look and see others less capable, or with a different facility and say that I would not want their life because mine is more exciting, because mine is more challenging, because theirs is menial, elementary labor, unskilled and exhausting, because I see no creativity or imagination- Why then must I degrade their material life?? Why must I place these gifts in the service of dominion, for my own self interest??
What is this contest that I need to make myself- not the better, but feel the better?- and use my reason and intelligence as if they were only the instruments of a supreme lullaby, as if their supreme use were to sublimate the trauma of human comparison, to justify the material judgment in the ordering of other men for our benefit.
Out of the womb without food or care You came, You would not have lived one week. But came a common woman, your mother, and doing nothing extraordinary, but with a common gentle care, she nurtured your frailty and your Possibility but with a common love. As it was her duty to do her best, so it is your duty to do your best- to nurture the world by the possibility of your gift- to give the best of yourself, but with a common love.
Why should anyone expect any less of myself?? Why should I demand so much more for myself because of this gift?? Why should I make less of others because of it? Why should I demand more money and make the wretched more?? Have I really done all I could??!!
Justify yourself to the horizon of achievement and to the possibility of your gift, of what you can give and do for others.
It is time for us in the United States that each of us ask what good we are making for the world, for others, with our dominion, with the gifts of our country? Are we making a world of fear without freedom? ...of work without reward? ...of dominion without community?
It is time to ask what good the greatness of our country aspires to serve?
Sometimes the role 'chooses you' as the facility comes so easily, so naturally to the level of function- absent in almost all other people. Difficulty in function is overwhelmed by gift, by the rare facility, by the uncommon, so much so that indeed it is not even the same level of difficulty of which two people speak. For every person on earth, to some extent this is so.
No Race has advantage over any other here, nor does either sex have advantage, nor does any Nation.
Perhaps as a man I find that I possess a gift of function- why must I demand more money from this when this is precisely the level I am good at- because I can master more functions than others? Why must I deny others of the dignity of life when I am merely meeting up to the level of my own capability? If I can try more- shouldn't I? If I can do more- shouldn't I? if I can make more for others shouldn't I?
But as we now clearly hold our temporary domain over the world, dominion is only a question in the order among men, and has no real function in the survival of the species. That question has been answered, that challenge has been met.
The level of competence, function, and power of a higher position should be compensation in itself. The work is more challenging, more interesting, more engaging, and the individual so capable. On line monitoring markets in London at 5:30 a.m., meeting with managers of different properties discussing systems at 9:00, at 10:00 overlooking reports and the details in the system-looking for glitches; phone calls to subordinates giving feedback and then monitoring decision processes through 11:00....
Perhaps as a man I look and see others less capable, or with a different facility and say that I would not want their life because mine is more exciting, because mine is more challenging, because theirs is menial, elementary labor, unskilled and exhausting, because I see no creativity or imagination- Why then must I degrade their material life?? Why must I place these gifts in the service of dominion, for my own self interest??
What is this contest that I need to make myself- not the better, but feel the better?- and use my reason and intelligence as if they were only the instruments of a supreme lullaby, as if their supreme use were to sublimate the trauma of human comparison, to justify the material judgment in the ordering of other men for our benefit.
Out of the womb without food or care You came, You would not have lived one week. But came a common woman, your mother, and doing nothing extraordinary, but with a common gentle care, she nurtured your frailty and your Possibility but with a common love. As it was her duty to do her best, so it is your duty to do your best- to nurture the world by the possibility of your gift- to give the best of yourself, but with a common love.
Why should anyone expect any less of myself?? Why should I demand so much more for myself because of this gift?? Why should I make less of others because of it? Why should I demand more money and make the wretched more?? Have I really done all I could??!!
Justify yourself to the horizon of achievement and to the possibility of your gift, of what you can give and do for others.
It is time for us in the United States that each of us ask what good we are making for the world, for others, with our dominion, with the gifts of our country? Are we making a world of fear without freedom? ...of work without reward? ...of dominion without community?
It is time to ask what good the greatness of our country aspires to serve?
Founders' Vision of Religious Freedom- Response to Colleen Carroll Campbell
St. Louis Post-Dispatch columnist, Colleen Carroll Campbell's November 1st piece, 'We've Drifted From Founder's Vision of Religious Freedom', deals with a Chicago area first amendment establishment of religion case. I think Ms. Carroll Campbell is right on the money.
She writes:
"The latest salvo in America's war over prayer in public schools was fired in Illinois last week when atheist activist Rob Sherman sued his daughter's suburban Chicago district to protest a new state law that mandates a daily moment of silence. Sherman and his 14-year-old daughter, Dawn, said the 15-second silent period observed in her high school is interrupting her education.
The Shermans have a habit of sweating the small stuff. Dawn successfully campaigned to scratch "God Bless America" from her school's homecoming song list this fall. Her father has battled to remove religious symbols from city seals, sever the link between the Boy Scouts and a local police department and stop student recitation of the Pledge of Allegiance".
"Through a series of rulings on largely symbolic matters, judges have sent a powerful message that religious faith is something citizens should keep to themselves".
"That message does not match the vision of America's founding fathers. Contrary to claims by revisionist historians, the founders did not see the First Amendment as a way to purge religion from the public square. They saw it as a way to prevent the establishment of a state church that threatened to stifle authentic religious expression and make religion subordinate to the state".
"The founders considered religion essential to America's character and crucial to the endurance of a vibrant, virtuous democracy. George Washington said "religion and morality are indispensable supports" to political prosperity. John Adams warned that our Constitution was designed "only for a religious and moral people" and is "wholly inadequate to the government of any other."
My response:
Ms. Carroll Campbell
I think that your St. Louis Post-Dispatch column is right on the money that the Shermans are extending their views of the establishment of religion in the public sphere too far. Your column also does a pretty good job of portraying the double-edged sword of the religious clauses of the first amendment- the establishment clause and the free exercise clause.
Most laws treating religion deal with the lines of the balance between the two. On the one hand, law protecting against the establishment of religion can impinge on the free exercise of it. Laws over-allowing the free exercise, where free exercise becomes promotion, step into the realm of the public establishment of religion.
I agree with your assessment that religion had a prominent place in the minds of the founders, and in the founding of the United States. James Morone's book, 'Hellfire Nation', does a pretty good job detailing one side of the role of religion in the public life of U.S. History, where the evangelistic aspects of righteous moralizing intruded upon and damaged the secular freedom of Americans.
The history you cite from the other side of this argument, I think is persuasive concerning the limits drawn by your argument. The founders obviously did not think that religion could be eliminated completely from public life. I agree with your assessment- the Shermans are going too far in their interpretation of the establishment clause and are pushing their own levels of the tolerance and free exercise of religion in the public sphere on others. Your short paragraph deals nicely with the reasonable common-sense need for balance.
"Surveys find that the public resents such extreme secularization efforts. Proselytizing and force-fed Bible verses have no place in public schools, but most Americans can distinguish between catechism classes and 15-second silent periods".
Ms. Carroll Campbell is right. It is fine if the Shermans don't want to be forced to pray- they can do anything with their 15 seconds of silence they want. But to want to eliminate the 15 seconds altogether because others are praying is ridiculous, and infringes on the freedom of others to do with the 15 seconds what they want- including pray.
An argument of the role of religion in American life, from the moral perspective, I would say in line with your sensibility, is Pope John Paul II's (The Great) encyclical letter 'Evangelium Vitae' (the Gospel of Life), which magnificently decries the over-secularization of everyday life, that has developed so far into a 'culture of death'. As the great Pope stated:
"Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree. Upon the recognition of this right, every human community and the political community itself are founded".
and then later...
"In fact, while the climate of widespread moral uncertainty can in some way be explained by the multiplicity and gravity of today's social problems, and these can sometimes mitigate the subjective responsibility of individuals, it is no less true that we are confronted by an even larger reality, which can be described as a. This reality is characterized by the emergence of a culture which denies solidarity and in many cases takes the form of a veritable "culture of death".
This culture is actively fostered by powerful cultural, economic and political currents which encourage an idea of society excessively concerned with efficiency. Looking at the situation from this point of view, it is possible to speak in a certain sense of a war of the powerful against the weak: a life which would require greater acceptance, love and care is considered useless, or held to be an intolerable burden, and is therefore rejected in one way or another".
So to extend the public sphere legal argument of the role of religion in public life, to the moral argument, the balance between first amendment religious clauses deal indirectly with the moral balance of freedom of the individual where that freedom becomes freedom of the powerful to do evil to others.
I would say that the battle for where the balance is drawn between free exercise and establishment, directly affects the moral balance between individual freedom, and evil done to others.
Our Constitutional law must balance between freedom to exercise religion and the establishment of religion, to preserve freedom, to preserve a sense of public obligation and morality, and to protect the individual in the war of the powerful against the weak.
Sincerely,
Richard J. Luczak II
She writes:
"The latest salvo in America's war over prayer in public schools was fired in Illinois last week when atheist activist Rob Sherman sued his daughter's suburban Chicago district to protest a new state law that mandates a daily moment of silence. Sherman and his 14-year-old daughter, Dawn, said the 15-second silent period observed in her high school is interrupting her education.
The Shermans have a habit of sweating the small stuff. Dawn successfully campaigned to scratch "God Bless America" from her school's homecoming song list this fall. Her father has battled to remove religious symbols from city seals, sever the link between the Boy Scouts and a local police department and stop student recitation of the Pledge of Allegiance".
"Through a series of rulings on largely symbolic matters, judges have sent a powerful message that religious faith is something citizens should keep to themselves".
"That message does not match the vision of America's founding fathers. Contrary to claims by revisionist historians, the founders did not see the First Amendment as a way to purge religion from the public square. They saw it as a way to prevent the establishment of a state church that threatened to stifle authentic religious expression and make religion subordinate to the state".
"The founders considered religion essential to America's character and crucial to the endurance of a vibrant, virtuous democracy. George Washington said "religion and morality are indispensable supports" to political prosperity. John Adams warned that our Constitution was designed "only for a religious and moral people" and is "wholly inadequate to the government of any other."
My response:
Ms. Carroll Campbell
I think that your St. Louis Post-Dispatch column is right on the money that the Shermans are extending their views of the establishment of religion in the public sphere too far. Your column also does a pretty good job of portraying the double-edged sword of the religious clauses of the first amendment- the establishment clause and the free exercise clause.
Most laws treating religion deal with the lines of the balance between the two. On the one hand, law protecting against the establishment of religion can impinge on the free exercise of it. Laws over-allowing the free exercise, where free exercise becomes promotion, step into the realm of the public establishment of religion.
I agree with your assessment that religion had a prominent place in the minds of the founders, and in the founding of the United States. James Morone's book, 'Hellfire Nation', does a pretty good job detailing one side of the role of religion in the public life of U.S. History, where the evangelistic aspects of righteous moralizing intruded upon and damaged the secular freedom of Americans.
The history you cite from the other side of this argument, I think is persuasive concerning the limits drawn by your argument. The founders obviously did not think that religion could be eliminated completely from public life. I agree with your assessment- the Shermans are going too far in their interpretation of the establishment clause and are pushing their own levels of the tolerance and free exercise of religion in the public sphere on others. Your short paragraph deals nicely with the reasonable common-sense need for balance.
"Surveys find that the public resents such extreme secularization efforts. Proselytizing and force-fed Bible verses have no place in public schools, but most Americans can distinguish between catechism classes and 15-second silent periods".
Ms. Carroll Campbell is right. It is fine if the Shermans don't want to be forced to pray- they can do anything with their 15 seconds of silence they want. But to want to eliminate the 15 seconds altogether because others are praying is ridiculous, and infringes on the freedom of others to do with the 15 seconds what they want- including pray.
An argument of the role of religion in American life, from the moral perspective, I would say in line with your sensibility, is Pope John Paul II's (The Great) encyclical letter 'Evangelium Vitae' (the Gospel of Life), which magnificently decries the over-secularization of everyday life, that has developed so far into a 'culture of death'. As the great Pope stated:
"Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree. Upon the recognition of this right, every human community and the political community itself are founded".
and then later...
"In fact, while the climate of widespread moral uncertainty can in some way be explained by the multiplicity and gravity of today's social problems, and these can sometimes mitigate the subjective responsibility of individuals, it is no less true that we are confronted by an even larger reality, which can be described as a
This culture is actively fostered by powerful cultural, economic and political currents which encourage an idea of society excessively concerned with efficiency. Looking at the situation from this point of view, it is possible to speak in a certain sense of a war of the powerful against the weak: a life which would require greater acceptance, love and care is considered useless, or held to be an intolerable burden, and is therefore rejected in one way or another".
So to extend the public sphere legal argument of the role of religion in public life, to the moral argument, the balance between first amendment religious clauses deal indirectly with the moral balance of freedom of the individual where that freedom becomes freedom of the powerful to do evil to others.
I would say that the battle for where the balance is drawn between free exercise and establishment, directly affects the moral balance between individual freedom, and evil done to others.
Our Constitutional law must balance between freedom to exercise religion and the establishment of religion, to preserve freedom, to preserve a sense of public obligation and morality, and to protect the individual in the war of the powerful against the weak.
Sincerely,
Richard J. Luczak II
Monday, October 22, 2007
The Folly of the Use of Terror
From 'the Kant Variations'- Unity in the House of Reason
haysod552.blogspot.com/2007_08_01_archive.html
Fear makes nothing. Fear learns nothing. Fear does nothing, joins nothing, loves nothing. And the sky of terrorists has claws throughout, swiping down, staring at others always, watching others like prey, and the winds hiss and whisper. Each path is mined, and as we walk this path we can hear the hideous laugh rise from the mantle of terrorists and we know that we are stalked. It is this way everywhere under the firmament of Terror, everywhere throughout the sky of Terror, and throughout all of this, everywhere and at all times there is no-thing, and all of this is no-thing.
Fear sits in the anguish of nothing and says that it is everything. Fear withdraws exposure of the self from the act, and paralyzes the self. There is no unity in fear, but only when we move from it. The production of fear by violence never unifies those to its cause, because there is no unity in the message. Defeat experienced in the contest of living may indeed feel like degradation but it does nothing to tell us how to live, it shows us not another way, but focuses on a pain that no other can ever take away, and that all men must live with. Terror attempts to paralyze, to stop the judgment of the world, but enters a world in which men do fear, but act anyway, do fear, but make anyway, do fear, but work anyway, do fear, but love anyway.
Terror has no voice, can say nothing but only that it has been wronged, that it is victim. Terror does not try again. The mistaken belief of Terror is that violence is power. What Terror wishes to change it cannot, for through violence there will change none of the production and capability of the world. Terror is a magnification of the weakness of the self, an attempt to show others a degradation and weakness that when felt, will change thinking. Terror thinks that the world will see it as capable and it will be restored. Terror sees its position only, and sees no difference between themselves and others, but sees itself less for it. Terror feels degraded and wishes others to feel degraded as well, only then according to Terror will the attitude change that `causes' the degradation to occur. What Terror does not see is that its' message does not connect, not because we are distanced and do not see, but its message does not connect because we have felt our own weakness, and we allow it.
We work from our weakness, and see the possibility that arises from it. Once death is accepted as a principle throughout the structure of life then No violence can ever make us feel less than dead. I do die, once I accept this the violence of what you do to me will never make me feel that you are great, will never bring approval, will never bring me together with you, will never make you capable, will never make you more. The `I' is weak, I accept this about myself, but together `we' are more, and in this more, together, there is nothing that violence and terror can do.
Richard J. Luczak II
haysod552.blogspot.com/2007_08_01_archive.html
Fear makes nothing. Fear learns nothing. Fear does nothing, joins nothing, loves nothing. And the sky of terrorists has claws throughout, swiping down, staring at others always, watching others like prey, and the winds hiss and whisper. Each path is mined, and as we walk this path we can hear the hideous laugh rise from the mantle of terrorists and we know that we are stalked. It is this way everywhere under the firmament of Terror, everywhere throughout the sky of Terror, and throughout all of this, everywhere and at all times there is no-thing, and all of this is no-thing.
Fear sits in the anguish of nothing and says that it is everything. Fear withdraws exposure of the self from the act, and paralyzes the self. There is no unity in fear, but only when we move from it. The production of fear by violence never unifies those to its cause, because there is no unity in the message. Defeat experienced in the contest of living may indeed feel like degradation but it does nothing to tell us how to live, it shows us not another way, but focuses on a pain that no other can ever take away, and that all men must live with. Terror attempts to paralyze, to stop the judgment of the world, but enters a world in which men do fear, but act anyway, do fear, but make anyway, do fear, but work anyway, do fear, but love anyway.
Terror has no voice, can say nothing but only that it has been wronged, that it is victim. Terror does not try again. The mistaken belief of Terror is that violence is power. What Terror wishes to change it cannot, for through violence there will change none of the production and capability of the world. Terror is a magnification of the weakness of the self, an attempt to show others a degradation and weakness that when felt, will change thinking. Terror thinks that the world will see it as capable and it will be restored. Terror sees its position only, and sees no difference between themselves and others, but sees itself less for it. Terror feels degraded and wishes others to feel degraded as well, only then according to Terror will the attitude change that `causes' the degradation to occur. What Terror does not see is that its' message does not connect, not because we are distanced and do not see, but its message does not connect because we have felt our own weakness, and we allow it.
We work from our weakness, and see the possibility that arises from it. Once death is accepted as a principle throughout the structure of life then No violence can ever make us feel less than dead. I do die, once I accept this the violence of what you do to me will never make me feel that you are great, will never bring approval, will never bring me together with you, will never make you capable, will never make you more. The `I' is weak, I accept this about myself, but together `we' are more, and in this more, together, there is nothing that violence and terror can do.
Richard J. Luczak II
Friday, October 12, 2007
The U.S. Constitution- A Document of Honor- Needs to Be Restored
The United States Constitution is not only the foundational law of the land, it is also a document of honor.
What I mean by that is that the Constitution declares the nation founded and does so indicating the terms by which we will govern ourselves. It is a statement to the world about how we will conduct ourselves, and for what we will hold ourselves responsible.
In this manner the U.S. Constitution is and was meant to be an 'upright document', our message as honorable men to the world, and to ourselves of the principles and rights we hold dear.
This is what it means to live by the rule of law. It's principles are thus truth, honor, and responsibility.
We need to restore executive conduct to the level of honorable conduct and honorable leadership, through an administration that is strong enough to live by what it says, and to say exactly what it means and intends.
It appears that this administration and its members use dissimulation when possible and hide behind the cloak of honor of the offices of the administration, to appear honorable to the public, while doing whatever they please until being brought to accountability. (for example- the shifting rationale for starting the Iraq War, the shifting prosecution of Jose Padilla, and vice-president Cheney's interpretation of not being part of the executive nor legislative branches)
Those that act by the principle of dissimulation to the public, while pursuing goals by other means, may have high public office, and at this time may have power beyond measure- but their characters; in the most common terms; belong to the smallest of men- behaving like undisciplined adolescents who take delight in the lies told about others. They therefore have nothing in common with the real leadership of the founding fathers. Through the unforgiving looking-glass of time, these leaders are always shown for the pretenders they were.
The most infamous names of history, associated with the basest of human hearts, are known so not because they were hideous and weak as individuals and didn't attempt to achieve anything, but because they were accomplished and placed in positions of trust- and through this trust their character and hearts shown by the methods they chose to inflict upon others.
The truth of their methods, and the truth of their hearts, has always been exposed through the looking-glass of time, no matter what 'lofty goals' were expressed to the public. So it shall always be, no matter what measures are attempted to conceal their crimes.
These leaders were never loved, never admired, and never followed, but merely survived, as most all people in their own countries and others smiled and nodded yes to survive, cursed them in their beds, and breathed sighs of relief and joy at their deaths.
And so through the looking-glass of time history HISSES their names- as if they were plagues and curses upon the people- known throughout the whole world by their methods. Names such as Hitler, Stalin, Hussein, Milosevic and Pol-pot, places such as Auschwitz, Darfur, Cambodia, Kosovo, and Rwanda. Names such as Karadovic, Goebbels, Eichman, Mengela, and Chemical Ali.
What methods will be brought forth for this administration for the world to see through the looking-glass of time? Will there be names in this administration that history and the world HISS when they are mentioned? We already know there are places that are already considered so- abu ghraib, guantanamo, the word 'rendition', and the secret prisons that one day will be brought to light.
It is time for this country to be led by the words of our great document, to become upright once more, and lead the world through the strength and principles of truth, honor, and responsibility.
What I mean by that is that the Constitution declares the nation founded and does so indicating the terms by which we will govern ourselves. It is a statement to the world about how we will conduct ourselves, and for what we will hold ourselves responsible.
In this manner the U.S. Constitution is and was meant to be an 'upright document', our message as honorable men to the world, and to ourselves of the principles and rights we hold dear.
This is what it means to live by the rule of law. It's principles are thus truth, honor, and responsibility.
We need to restore executive conduct to the level of honorable conduct and honorable leadership, through an administration that is strong enough to live by what it says, and to say exactly what it means and intends.
It appears that this administration and its members use dissimulation when possible and hide behind the cloak of honor of the offices of the administration, to appear honorable to the public, while doing whatever they please until being brought to accountability. (for example- the shifting rationale for starting the Iraq War, the shifting prosecution of Jose Padilla, and vice-president Cheney's interpretation of not being part of the executive nor legislative branches)
Those that act by the principle of dissimulation to the public, while pursuing goals by other means, may have high public office, and at this time may have power beyond measure- but their characters; in the most common terms; belong to the smallest of men- behaving like undisciplined adolescents who take delight in the lies told about others. They therefore have nothing in common with the real leadership of the founding fathers. Through the unforgiving looking-glass of time, these leaders are always shown for the pretenders they were.
The most infamous names of history, associated with the basest of human hearts, are known so not because they were hideous and weak as individuals and didn't attempt to achieve anything, but because they were accomplished and placed in positions of trust- and through this trust their character and hearts shown by the methods they chose to inflict upon others.
The truth of their methods, and the truth of their hearts, has always been exposed through the looking-glass of time, no matter what 'lofty goals' were expressed to the public. So it shall always be, no matter what measures are attempted to conceal their crimes.
These leaders were never loved, never admired, and never followed, but merely survived, as most all people in their own countries and others smiled and nodded yes to survive, cursed them in their beds, and breathed sighs of relief and joy at their deaths.
And so through the looking-glass of time history HISSES their names- as if they were plagues and curses upon the people- known throughout the whole world by their methods. Names such as Hitler, Stalin, Hussein, Milosevic and Pol-pot, places such as Auschwitz, Darfur, Cambodia, Kosovo, and Rwanda. Names such as Karadovic, Goebbels, Eichman, Mengela, and Chemical Ali.
What methods will be brought forth for this administration for the world to see through the looking-glass of time? Will there be names in this administration that history and the world HISS when they are mentioned? We already know there are places that are already considered so- abu ghraib, guantanamo, the word 'rendition', and the secret prisons that one day will be brought to light.
It is time for this country to be led by the words of our great document, to become upright once more, and lead the world through the strength and principles of truth, honor, and responsibility.
Tuesday, September 11, 2007
The Consent of the Governed, Article V, and Originalism
Ahkil Reed Amar; in his article ‘The Consent of the Governed: Constitutional Amendment outside Article V’; in the March 1994 Issue of the Columbia Law Review;1 argues for the validity of a non-enumerated Constitutional amendment that is grounded in the history of the constitution outside of Article V.2 The purpose of this article is twofold. The first purpose is to address the premise of Amar’s argument, and the second purpose is to elaborate on the significance of Amar’s research and arguments for a theory of popular sovereignty and this theory’s impact on the jurisprudence of ‘Originalism’.
Amar’s article argues that there is an avenue for the American people to achieve the ratification of a constitutional amendment without the procedure of amendment proposal or ratification indicated in Article V of the constitution.3 Amar states that a majority of the people can petition the government directly with an amendment proposal for constitutional convention, and that the government would be obligated to accept this proposal because of the incorporation in the constitution of the first principle of ‘popular sovereignty’ of the people -the power of ‘We the people’ to change or abolish government whenever we please.4 Amar states that such an amendment could be ratified by a simple majority of American voters.5 Amar argues that this principle is announced in the declaration of independence as a founding principle.
We hold these truths to be self- evident, that all men are created equal, that they are endowed by their creator with certain unalienable(natural) rights… that…governments…derive their just powers from the consent of the governed. That whenever any form of government becomes destructive of (its) ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.6
Amar then begins the elaborately constructed defense of his position with his premise. “Begin by noting what Article V emphatically does not say. It emphatically does not say that it is the only way to revise the Constitution”.7 I disagree. A simple and careful straightforward reading of Article V shows strong evidence in the text that Article V does say in a strong sense that the two procedures for amendment proposal are the only ways for amendment proposal. Let’s look at the words of Article V:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”..8
Article V enumerates two methods, which according to the Article “in either Case, shall be valid as Part of this Constitution”. Obviously the key words with regard to the simple incorrectness of Amar’s premise are the words- “In either case, shall be Valid”. ‘Either’ is an exclusionary conjunction which limits the scope and significance of the connection to a choice between one term under consideration or the other term under consideration. The phrase ‘either one OR the other’, always denotes directly a choice between two. The word ‘Either’ groups only two terms in the English language- while eliminating the inclusion of any other possible choices, unless otherwise indicated in the language preceding or following. There is no such language in the text of Article V that otherwise indicates any other choices. In other words, the text says clearly: there are two methods to propose an amendment that are valid- and your choices are only between one method or the other.
Article V needs no other clause indicating exclusion of other modes of amendment outside of this language because the restriction is achieved by the economy of use of the limiting conjunction ‘either’, which confines the choice options, while excluding all others, solely within the text present in Article V. The phrase “shall be Valid” thus confers validity on what is limited by the previous limiting conjunction- ‘either one method of amendment proposal, or the other method, and no others, are valid methods of amendment proposal.’ The phrase “In either case” also indicates that both methods cannot be attempted simultaneously in the proposal of a specific amendment, otherwise the language would have read- ‘in both cases’, or ‘in these cases’. Furthermore, the use of the conjunction “or”, in the clause on ratification methods denotes the same restrictive choice structure- ‘one or the other’.
“when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress”;9
The plain language and meaning of the text of Article V couldn’t be clearer. The language in the paragraph enumerates the only two choices of method of proposing a valid constitutional amendment, describes the only two valid choices of methods of ratification of an amendment, and restricts the power of Article V for amending 3 provisions in the constitution until a specific future time. Amar’s premise upon which is built the remainder of his structure of argumentation for a valid non-enumerated constitutional right of amendment is clearly false through a careful reading of only the text of Article V. The elaborate construction that follows in Amar’s article based on this false premise thus easily falls apart.
What Amar’s evidence and arguments attempt to present is the support in an historical basis for a valid non-enumerated process of constitutional amendment. For these purposes the research fits the argument in only a weak sense. The combination is unconvincing as a historical case for the validity of constitutional amendment outside Article V, as Professor Monaghan has clearly demonstrated.10
First, the specific popular sovereignty language of needing a mere majority for ratification as listed by Amar in States Bills of Rights,11 was not adopted by the founders in the U.S. Constitution. Combine this with Monaghan’s research showing that the history demonstrates that the Founders attempted to limit the popular sovereignty of the people through the supermajority requirement in Article V12 and through the Federal use of elected representatives13 to propose amendments, and the case for a direct popular sovereignty submission of an amendment has no direct support in the research.
Second, the reference to ‘first principles’ to alter or abolish by revolutionary popular sovereignty indicated by Madison14 aren’t adopted into Article V either. There is thus a tremendous legitimacy problem with Amar’s proposal due to the discrepancy between the population requirement of only a majority for submission and ratification in Amar’s proposal, and the supermajority of ¾’ths of the States actually indicated in Article V. The previous lower thresholds proposed by delegates were rejected,15 indicating that the founders as a whole wanted the supermajority threshold. So Madison’s indication in the passage referenced by Amar doesn’t appear to be definitive of the founders’ intent, just one founder’s intent.
Some problems with Amar’s proposal: What argument would justify legitimately attempting to circumvent the supermajority requirement by a political party to pass an amendment that proposes drastic ideological and structural change, that couldn’t also be used to justify an opposite ideological and structural change by the opposing political party- should they achieve a majority? How does one judge that government has become ‘destructive’ enough to require alteration or abolition, while at the same time not be ‘destructive’ enough so that the voting fails at achieving a supermajority? And if it is destructive enough to change through extra-constitutional revolutionary means, how does one determine that government is destructive enough to alter with a majority, but not destructive enough to abolish? Or that government is destructive enough to abolish with only a majority, and not with the supermajority indicated for mere amendment by Article V?
Amendment proposal under the mere majority espoused by Amar, would include election rules that would heavily favor the current majority party, in attempt to make permanent the majority. Were Amar’s amendment proposal and ratification methods valid, after the 2004 elections, with republicans capturing 30 states, they would have been justified in claiming majority popular sovereignty right to: 1) repeal the 14th amendment, 2) make the ‘unborn’ Citizens, 3) eliminate all taxes for entrepreneurs, and more. I side with Monaghan’s admonition here,16 that time has proven that the supermajority requirement in Article V for limiting sweeping change through amendment was wise.
The stability provided by the supermajority requirement in Article V, combined with the Article’s ability to change, may very well be the balancing factors that have allowed our form of Government to last so long, with only the one serious attempt in our history to abolish it.
Furthermore, the examples of Popular Sovereignty in the preamble and infused throughout the Constitution listed by Amar actually work against Amar’s argument for the purposes of establishing the validity of amendment outside Article V, because they confer legitimacy that amendment of the Constitution through Article V is the exercise of the will of the people, is the very exercise of popular sovereignty, as difficult as it may be to achieve.
The non-enumerated constitutional amendment proposed by Amar has no legality through the constitution, and is such extra-constitutional. The right for the people to alter he cites in the Declaration of Independence is thus fulfilled through Article V, and this leaves the right to abolish- which is clearly an extra-constitutional revolutionary right only exercised when the people decide the constitution and form of government are ‘destructive’ enough to do so. Any attempt to alter the constitution outside Article V thus would legally have to be considered a complete discarding of the Constitution as a whole, and the reestablishment of a new Constitution, to validate this change.
The Unintended Benefit of Amar’s Popular Sovereignty Research in the ‘Consent…’
What Amar’s research unintentionally presents and supports is the historical basis and support for the popular sovereignty legitimacy and dynamism of Article V itself, and this combined with the locus of foundational constitutional authority in the Declaration of Independence phrase “the consent of the governed” thus undeniably infuses the dynamic principles of fundamental change, popular sovereignty, and ongoing citizen participation in the people’s interpretation of the Constitution and thus also in the interpretation and consideration of Supreme court decisions in the application of the Constitution, as undeniably supported by the original intention of the founders. The reading of popular sovereignty consent through the prism of Article V dynamism, is therefore essential to the application of the Constitution by Supreme Court decisions, and forever destroys the intellectual foundations of today’s static Originalism as authentic and consistent as a method of constitutional interpretation.
The three theoretical foundations of today’s static Originalism as a valid method of constitutional interpretation for jurisprudence are thus undeniably intellectually undermined by the history of the founding. 1) The position of Originalism based on the authority of the framers is undermined because the framers themselves deny primary authority, and place it rather in the agreement of the people. 2) The dynamism in Article V undercuts any static conception of original intent, because as the constitution can be modified, so can the intent and scope of the constitution through amendments that negate the authority of original scope and intent of the founders. 3) The historical fact of the birth of the constitution- ratification- through compromise undermines the Originalist argument of consistency, as fundamental change to these principles in the form of a future bill of rights was agreed to by the Federalists in the deal of ratification.
1) The Consent of the Governed
Federalist #22:
“The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority”.17
The Declaration of Independence:
“that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it”18
The authority given the constitution is not the authority derived from the pronouncements of great men, or from comparison of Great men to other men, and thus also not of the founders in comparison to today’s citizens. The authority given the constitution, the “just power” according to the Signers of the Declaration of Independence and the original fountain of all legitimate authority, according to Hamilton in Federalist #22, is derived from the “consent of the governed”. The consent of the governed is the agreement of those governed, to be governed in the manner prescribed by the words in the constitution. It is thus the agreement of the people with the law that creates the authority of the Constitution.
These are the words of the framers themselves- that the power comes not from the measure of the framers and their achievements throughout history, or the greatness of the words themselves, but comes from the agreement of the people with the words of the law issued by the Constitution. The Constitution thus starts not with the preamble, but with the “consent of the governed” through the ratification by the people that these are the words that announce our union, and that these are the words by which we agree to be governed.
The basis of Originalism, which lies for today’s static Originalists in the authority of the framers, and which looks to the intent of the framers in the drafting a specific provision, is thus located incorrectly by today’s originalists, and this basis is undermined by the words of the framers themselves. The framers clearly say that they themselves are not the authority, that the “just power”, the original authority is derived from the “consent of the governed”- i.e. the agreement of the people.
Thus the phrase the “consent of the governed”, combined with the power of fundamental change in Article V, not only serves as the original justification of authority of our constitution as it was established in 1787, but serves as a call to the participation of today’s ‘citizen-framer’ to consider the constitution, and how it is applied, and thus to grant consent, or deny consent and demand alteration, through first amendment freedom of speech and it’s extension to the states through the 14th amendment. It is not the call of founding fathers to lesser men to follow what the founders proclaimed, but the call of founding citizen-framers to current and future fellow citizen-framers across the ages to join in the continued revolution of representative self-government, to consider the constitution and its application and to give consent or deny consent, and demand alteration through the ballot box in reelecting or replacing their political representatives based on this consent or denial of consent. It is thus the primary duty of citizenship for the individual citizen to make known their consent or denial of consent of any act of government, including the application of the Constitution through a Supreme Court Decision.
This then directly calls for the continued participation of the people in the consideration of, and the granting or the denial of consent of the application of the constitution in cases by the opinions of the Supreme Court. The Supreme Court has the power to issue an opinion that radically changes the application of a provision, and according to the constitution it must be followed, but if it is an application that does not have the consent of the governed, the agreement of the people, then that opinion has no “just power”. This means that if a justice purposefully votes according to their own ideology, or because they think they know better, with conscious disregard of the disagreement of the people, then they vary fundamentally from the single central principle of the constitution of the founders, and thus have nothing in common with the founders.
Justice Black in Milk Wagon Drivers Union V. Meadowmoor, 312 U.S. 287, concurs.
“in reaching my conclusion I view the guaranties of the First Amendment as the foundation upon which our governmental structure rests and without which it could not continue to endure as conceived and planned. [Footnote 4] Freedom to speak and write about public questions is as important to the life of our government as is the heart to the human body. In fact, this privilege is the heart of our government. If that heart be weakened, the result is debilitation; if it be stilled, the result is death”.19
Footnote 4: “Thomas Jefferson, the great strategist of the campaign to bring about the adoption of the Bill of Rights, a campaign which he began even before the Constitution was adopted, said as to one of the guaranties of the First Amendment: 'The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter”. 20
Justice Black here refers to the importance of Freedom of Speech, i.e. the reason why Freedom of Speech is important. The importance of Freedom of Speech for Black; what is as important to government as the heart is to the human body; is the public conveyance of the true status and level of the consent of the governed to the elected representatives of government. Black refers here not only to the ability of the citizen to freely be able to speak if they so choose, but refers also to the very necessity that speech by the citizenry about the public questions be present- and that it must be free in nature- in order for representative self-government to properly function. Jefferson confirms in footnote 4 that the consent of the governed is nothing less than the opinion of the people, and that the conveyance of this consent or denial is vital to legitimate representative government that claims “just power”.
Today’s Originalism attempts to eliminate the foundational element of popular sovereignty at the core of government, by eliminating the citizen’s active role in the consideration of accepting or denying consent to a new application of the law in a Supreme Court decision. Originalism says ‘don’t consider for yourself, you are not competent, especially in comparison to these great men- so just follow’. The history of the intent of the framers is then substituted for the content and consequences of the scope and application of the words of the Court’s opinion. In the retelling of the history, in most cases lengthy and involved, the Ordinary citizen becomes educated as to the history and to the intent of the framer through this retelling, and in this education realizes they are not an expert, and thus quickly determines that their own competence fails in comparison. The offer to associate the citizen with the opinion of the ‘great men’- the framers- renders an easy and painless transfer of authority.
Today’s Originalism is thus not only a method of interpretation and jurisprudence, but simultaneously a technique of the Originalist camp to get the members of the public to give up their authority as citizen-framer to consider for themselves, through an association by proxy with the authority of the founders through the history of the founders intent. Now any citizen is free to do only this much in the interpretation of a constitutional ruling if they so choose, however they should be reminded that this was not the intent of the framers. The original opinion of the people; after considering the law and its application; properly constitutes what the framers termed the “consent of the governed”. The framers formed the words not from the extreme greatness and originality of themselves in generating new thought, but from the collective truth of freedom in the human condition observed and developed over the years. They merely recognized the truth of where liberty originates, as Learned Hand states that “Liberty lies in the hearts of men and women”.21 It was this truth that the founders followed in the words they used, many derived from the Magna Carta22 5 and ½ centuries earlier.
2) The Concept of Original Intent in the Constitution is Dynamic Because of Article V
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;..”23
Because of the almost unlimited scope of change of amendment in Article V, the original intention of the founders was not only that there would be change to the Constitution, but that this change included the possibility that what the founders originally intended for the scope and application of law, could itself be changed by the intentions of a future amendment’s drafters, and once ratified this fundamental change would then be undeniably valid.
This fundamental amplification of application and intent is precisely what the adoption of the 14th amendment accomplished. By introducing catalyst language that expands the application of the bill of rights and other rights to include binding the States, the 14th amendment lawfully and legitimately expanded the original intention of the drafters, through the intentions of John Bingham and ratified by the people. As demonstrated throughout his article, the 38 examples and arguments detailed by Amar24 provide overwhelming historical evidence that the right of the people to alter the constitution, through Article V, was irrefutable in the intent of the framers and are demonstrated throughout the speeches and documents of the framers. Amar’s research irrefutably demonstrates that it was clearly the original intent of the framers that change to the constitution- even fundamental change contrary to their original intentions- be able to occur. Thus Article V infuses the Constitution not with a rigid and static conception of original intent, but with a dynamic conception of original intent.
Hence in the history of Constitutional amendments and the Constitution itself there is a progression of original intent that starts with the original constitution, changes with the ratification deal in 1787, and this change is confirmed with the addition of the bill of rights in 1789, and then progresses again each time with the addition of each amendment, changing with the addition of the 13th, and 15th amendments, and changing fundamentally with the addition of the 14th amendment.
An original intent reading of the Constitution that opposes incorporation of the 14th amendment thus denies or ignores the dynamism of intent inherent in Article V and the Constitution’s history, and that interpreter cannot be deemed a faithful follower of a faithful doctrine of original intent, because the founders inserted this fundamental dynamism into the Constitution. Future citizens of the United States were thus clearly seen as fellow citizen-framers in the ongoing project of self-government.
The unintended significance and utility of Amar’s research and arguments in the article is thus the overwhelming historical evidence for support for the truly dynamic popular sovereignty character of the Constitution and Article V as it applies to an accurate depiction and meaning of the text of the Constitution over time, and of original intent over time. Amar’s research in this article establishes the evidentiary historical basis of Article V and first principle popular sovereignty dynamism beyond any doubt, and with this work provides the evidentiary basis for the argument that logically destroys any shred of credibility in the historical underpinnings of the position of those who interpret the Constitution based on a static conception of the intent of the original framers.
3) Madison’s Ratification Deal Undermines the Theory of Original Intent
Madison indicates in Federalist #40 that the addition of the Bill of Rights to the Constitution was essential to secure ratification by the anti-federalists.
“The states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been contemplated”.25
The signing statements of the “Massachusetts Compromise” and of other states ratifications, show that changing the Constitution of 1787 was a condition of their very ratification of it. The History of the founding shows that the deal to accept the Constitution was at the same time an agreement to change the Constitution.
Because they were the political minority and thus not in power, I contend that it was the anti-federalists concerns for their own personal freedom and rights that established the true level of what they thought constituted freedom. As they were the authorities of the states where they were from, they neither needed nor wanted civil liberties protection on the state level. But they did need protection from their political opponents, should the Federalists become authoritarian and oppressive once the constitution was ratified.
Acting in their own self-interests, the anti-federalists examined the guarantees in the main body of the Constitution, considered the future impact of the law on their own lives, and decided these guarantees weren’t enough. They needed to be guaranteed by those in power the rights of freedom of speech and of the press, freedom of peaceful assembly, freedom from the government establishment of religion, and guaranteed from those in power unjust persecution by due process protection. So they made a deal with the Federalists. They would agree to ratify the Constitution and come under the Federalists power- they would agree to be governed- if these freedoms were guaranteed in founding law. This was the source of the states ratification of the Constitution and the true historical moment of popular sovereignty for the Constitution, the true moment of the consent of the governed that provided legitimacy, and “just power”, to the 1787 Constitution.
The governing power didn’t really want to grant individual freedom and liberties, but to gain the consent of the governed it was forced to do so. This provides both the original and popular sovereignty model of free citizens for interpreting and considering their constitution. The anti-federalists didn’t merely listen and follow the arguments of those in power- the Federalists- they consulted English law, their own state constitutions, and the text of the main body of the Constitution set before them, and then determined how they wanted to be governed.
This interpretation of the main body of the Constitution by the anti-federalists was thus the original constitutional interpretation, not the one by Marshall in Marbury v. Madison, and the methods used by the Anti-federalists provide the model that should be followed to apply or change the Constitution. As indicated earlier, the deal to establish the Constitution was thus at the same time also a deal to amend the constitution. Through the dynamism and power of popular sovereignty in Article V, the anti-federalists changed the original intent of the Federalist framers, and brought the Constitution and their own civil rights to reality. Through their own concerns against the possible unjust suppression of the majority in power, and against what they wanted for their own people, the anti-federalists admitted the truth of what they considered the authentic level of freedom for themselves with the proposal of a bill of rights that limited the use of unjust Federal power against themselves.
The fact that the ratification of the constitution occurred out of compromise of the principles of the Federalist founders thus undermines the certainty of the Original intent of the framers argument for today’s static Originalists, because despite the intentions of the framers in the drafting of the 1787 original constitution, they changed this intent when they agreed to amend the constitution at a later date.
Raoul Berger’s- ‘The Transformation of the 14th Amendment’,26 provides the basis of the consistency argument for Originalism in the beginning of the book,
“the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the constitution was accepted and ratified by the Nation… be not the guide in expounding it, there can be no security for a consistent and stable (government), more than for a faithful exercise of its powers”.27
Consistency in the application of law to achieve consistency, security, and stability in the exercise of Government thus forms the core of Berger’s jurisprudence in expounding the Constitution. But how can this type of consistency be rationalized by Berger, when the generation of the Constitution came not from the ideas of the 1787 Constitution, but from the compromise of the ratification agreement to amend? Wouldn’t this mean then that historically the democratic principle of compromise sits at the root of finding social balance and order in the drafting of and acceptance of the law?
Madison’s phrase that “The sense in which the constitution was accepted and ratified by the nation”, does not only refer to the authority of the framers in the generation of the draft, but refers also to the acceptance and ratification of the Constitution by the citizenry- i.e.- the “consent of the governed”. Berger’s own evidence for his rationale equally proves the opposite, and is textually a popular sovereignty argument that Berger somehow turns into evidence of authoritative generation. Berger here is either blind to, or chooses to ignore, the fundamental popular sovereignty element at the heart of the text of his own rationale. Berger’s need for consistency from a single source of authority overwhelms the public role of the participation of the public in the acceptance of the law. Once again Originalism misreads the evidence.
What this means, practically, is that Berger denies today’s citizens the right to give or deny consent with regard to how they are governed under the Constitution. In Berger’s reading, only the citizens at the time of ratification were autonomous and self-governing, only they were free. Today’s citizen for Berger has no role in determining whether a Constitutional application through Supreme Court Opinion is accepted or not. For Berger, Citizens are obligated to only follow, and to obey. For Berger there is only one moment of the “consent of the governed”- the 1787 ratification.
The Federalists consulted, drafted the main body without a bill of rights, received negative feedback, equivocated, and then through the principle of democratic popular sovereignty, compromised in a deal with anti-federalists. The history is hardly the certainty of Moses coming down from the mountain as God’s chosen messenger and proclaiming the law as given by God. The popular sovereignty democratic principle of compromise, historically has as much place at the table of original intent as the selected words of individuals dressed up in authority.
4) Textualism as Faithful Originalism
“Justice Story Said, “Every word in the Constitution is to be expounded in its plain, obvious, and common-sense meaning, unless the context furnishes some ground to control, qualify or enlarge it.”28
The opinion of the people; to deny or give the consent of the governed; with regard to an application of the constitution through a supreme court opinion, is clearly just such a context. Textualist jurisprudence, combined with a consideration of the measure of consent of the governed, is thus a truly conservative and cautious Constitutional jurisprudence, and a truly faithful Originalism. It applies the law through the text of the constitution in a plain reading of the words on the page. These words change only when the proper methods of proposing an amendment have been followed, when the proper methods of ratification have been completed, and when the public denies the consent of the governed. Then it is left to the justices of the Supreme Court to apply any direct changes from the amendment and any changes to other Constitutional provisions that the new amendment may effect.
An example of a jurisprudence that thus reflects the real belief of follower of faithful Originalism- progressive original intent- would be found in the jurisprudence of Justice Black. Black’s well known textualist application followed from the words on the page, and the significance for the application of law for individual rights fundamentally changed with Black’s faithful interpretation of the text of the 14th amendment. Black recognized the nature of the change by which the prism of the words of the 14th amendment affected provisions involving individual rights, and he faithfully applied the law through this new prism. Black thus followed the original intent of the framers of the 14th amendment, which through Article V followed the intention of the drafters of the bill of rights, which through Article V followed the intention of the original framers of the Constitution. And so our Constitutional law progressed, and so original intent progressed, through the lawful mechanism of dynamism indelibly inscribed in Article V.
What implications does this have for theories of incorporation of the 14th amendment? Through the force of authority of Article V, the Bill of Rights and the 14th amendment, because they have been ratified by the people of the states and are thus law and must be applied, and with overwhelming public agreement, this collective authority deems that only a theory of total incorporation is truly valid.
Does this mean that the ‘selective incorporation’ advocated by Justice Brennan and the ‘refined incorporation’ advocated by Amar are wrong approaches? No. Contrary to their own pronouncements and attempts to distinguish themselves through definition, it is my opinion that both Brennan and Amar ARE in fact under the umbrella of ‘Total incorporation’. There’s no evidence in either of their theories that argues against the fundamental change that the text of the 14th amendment has on the Bill of rights and other individual Constitutional rights.
In fact, evidence exists for the opposite. Amar’s chapter- ‘Reconstructing Rights’ in his outstanding book ‘The Bill of Rights’,29 argues and details incorporation through a type of Total incorporation approach. It’s not that all the amendments ‘don’t incorporate’ it’s just that incorporation of the words of the text of the 14th amendment have no effect on Constitutional application for these amendments. Amar’s question – “whether a (right) is a personal privilege- that is- a right of individual citizens”, 30 announces a principle of examination for evaluating a provision. His question is a tool of interpretation and application that identifies the common characteristics of individual provisions of the Constitution that are affected in application by the words of the text of the 14th amendment. The fact that he applies this question to how the 14th amendment affects a provision evidences his adherence to attempt to apply the 14th amendment throughout the entire Constitution.
It is virtually the same with Brennan’s theory of ‘selective incorporation’, although his terminology of “fundamental provision”31 is on the face of it more vague than Amar’s examination principle of ‘refined incorporation’. In both cases Brennan and Amar deal with the specific application of the words of the text as they affect or do not affect application of all other provisions of the constitution. Their disagreements of application are thus within the rubric of the attempt of total incorporation. As Justice Brennan has written:
“The position of the states in Gideon illustrated that federalism is better served by incorporation of the guarantees of the Federal Bill than by a case-by-case assessment of the degree of protection afforded to particular rights”.32
All provisions of the Bill of Rights need not be affected equally by the 14th amendment, but the examination by the interpreter to determine if and how much they do- that is the mark of a follower of ‘Total Incorporation’.
‘Total incorporation’ thus looks to see if the text of a provision is affected by the text of the 14th amendment, and attempts to apply it. If a provision ‘incorporates or not’ is thus determined between the interchange in meaning in the relation of the words between the provision and the 14th amendment, as applied by the interpreter. Not looking to see if the text of the 14th amendment changes the application of the provision, based on the antiquated theory of static Originalism- this is the hallmark of the opponent of Incorporation. The interpreter who does this denies the validity of the 14th amendment, and thus denies the revolutionary dynamism inscribed in the Constitution in Article V and its implications for the concept of Original Intent. This interpreter thus flies directly into the face of the law and the framers. Brennan and Amar are not this kind of interpreter, and whether they thought so are not, are both much closer to Black’s Jurisprudence with regard to the application of the 14th amendment than either of them thought. ‘Selective incorporation’ and ‘refined incorporation’ are thus different types of applications under the umbrella of Total incorporation’ of the 14th amendment.
The textual reading of the 14th amendment by; Amar in Chapter 8 of ‘The Bill of Rights’;33 is defining for analysis to determine whether the 14th amendment intended to incorporate the Bill of Rights. From Amar’s reliance on the Supreme Court’s Opinion in Barron- “Had the framers of these amendments intended them to be limitations in the powers of the state governments, they would have imitated the framers of the original Constitution, and have expressed that intention.”34 - to the equivalences he demonstrates between the terms in the Bill of Rights “rights and freedoms”, and the terms “privileges and immunities” in the 14th amendment, to the inverted equivalence between the phrasing introducing both the Bill of Rights and the 14th amendment, “Congress shall make no law..” and “No state shall abridge..”, this chapter is a defining textual reading and argument for the incorporation of the bill of Rights.
That Amar shows that Bingham drafted the amendment specifically with the intention to respond to and reverse the Barron opinion just adds further defeat to today’s static originalists that the 14th amendment was intended to incorporate the Bill of Rights.
“In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866,…I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United State, the Chief Justice said: ‘Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Acting upon this suggestion I did imitate the framers of the original Constitution…..imitating their example and imitating it to the letter”.35
5) From the sources of influence, through research, to the basis of a New Citizenship
I contend there are two sources that predominantly influenced Amar’s ‘Consent of the Governed’. The first is Bruce Ackerman’s characterization in his book ‘We the People’36 that the three most transformational constitutional changes in U.S. history were extra-constitutional. The second is Amar’s implicit admission that the equal rights amendment influenced his position of amendment outside of Article V, to the point that the self-evident truth that women are created equal, justifies its validity.
First, Ackerman’s central paragraph on constitutional change in his book “We the People”:
“Founding Federalists > Illegal Constitution; Reconstruction Republicans > formal Amendments; New Deal Democrats > Judicial Rediscovery of Ancient truths: this schema suggests a subtle but unmistakable decline in the constitutionally generative capacities of the American people. Apparently, we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”.37
Next, from the last two paragraphs of ‘The Consent of the Governed’:
“Women today constitute a majority of both the Massachusetts and American polities. They are today governed under a federal Constitution largely the making of men who died long ago, men who may not have had their interest foremost in mind. If either the Massachusetts or American People is sovereign, women- in combination with like minded men- could by simple majority vote alter or abolish patriarchal rules in the federal Constitution… For me at least, one of the best reasons for embracing the “First Theorem” is the self-evident truth that women, too, are created equal”.38
Briefly, I contend that Ackerman’s characterization in ‘We the People’, that all three instances of revolutionary change in the history of the Constitution- the founding, the 14th amendment, and the new deal- are constitutional. The succession of the Southern states from the union provided a constitutionally valid supermajority of Republicans to fashion the conditions for the successionists’ re-inclusion into the political structure of the United States- it was therefore a legal supermajority within the authority of the Constitution, and thus a legal ratification of the 14th amendment. Roosevelt’s court packing, although unusual in U.S. history, is certainly within the Constitution. Only the ratification of the original constitution was revolutionary, but of necessity also just inside the legal frame of the constitution, and certainly within the spirit of the declaration, and should be considered a part of the original declaration of the founding of the nation that is the constitution. The ratification was in essence the declaration of the founding of the nation, and thus an integral part of the constitution. As I noted earlier, ratification comes first, then the preamble.
Second, it is my contention that Ackerman’s accurate depiction of the extraordinary nature of the three transformational Constitutional events and his conclusion from this that “we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”, heavily influenced Amar’s thought concerning the chances of ordinary passage of the Equal Rights Amendment. This, combined with Amar’s willingness to wield his academic research and polemical sword in the name of a cause he believed in, led to the intellectual overreaching in his attempt to match the history of popular sovereignty with the possible validity of constitutional amendment outside Article V, and with this work provide the intellectual basis for Women to submit a popular sovereignty based Equal Rights Amendment, and then ratify it.
Even though the argument in “The Consent of the Governed..” is misdirected because of what Monaghan calls Amar’s “personal philosophy”,39 the research that came from it was impeccable, and forms the basis for the absolute destruction of the intellectual and historical foundations of static Originalism, and helps lead to the reformation of a more dynamic popular sovereignty Originalism that is faithful to the first principles of federalist self-government indicated in the Declaration of Independence and Federalist #22.
The new Faithful Originalism is formed from the call through the ages from the founders; in the Declaration of independence, through Article V and the first and 14th amendments; to today’s citizen-framers, to consider the history, consider the words of the Constitution, and consider how the application of Supreme Court Opinions and new laws affect both our freedom, and our social order. Then it is the responsibility of today’s citizen to grant or deny their consent, and to make this choice known to their elected representatives. From this call, Supreme Court Justices must consider this factor in the application of the constitution in all cases, if their decisions and opinions are to have “just power”.
The advent and development of communication and information technology provides today’s citizen new tools by which to easily obtain information on Constitutional issues as well as state and local government issues of all kinds. Citizens can then make their decisions, and register their agreements or disagreements more easily and accurately. It is therefore also the responsibility of the Courts as appointees who wish to be in league with the founders, and apply the law through opinions that have ‘just power’, to know and consider the status of the citizen’s consent with regard to a case. It also at the same time accentuates the active role of today’s citizen-framer, and makes the call from the framers a responsibility of the citizen to participate. It is a call to participate in the ongoing revolution of representative self-government.
George Washington said that:
“The basis of our political system is the right of the people to make and alter their Constitution of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all”.40
Providing the opinion of the people, the consent of the governed, is just such an “explicit and authentic act”. This is the “New Citizenship” call of responsibility to any voter with access to phone, computer and internet service- to obtain information, educate themselves, and then march alongside the framers throughout and across history and raise their voices, and call and/or write letters to the editor and/or to their representatives. It is the citizen’s duty to vote and communicate their agreement or disagreement to their elected representatives, and to the Courts.
“(James) Wilson proclaimed the power of the people in the strongest of terms, “That the supreme power, therefore, should be vested in the people, is…the great panacea of human politics. It is a power paramount to every constitution, inalienable in its nature, indefinite in its extent. For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form..”41
In these ways citizens make known the consent of the governed in “specific and authentic acts of the whole people”. By doing this today’s citizens do their duty to provide government with the measure of the “original source of all authority” and “just power”, in and through each and every individual citizen’s denial or granting of consent.
Richard J. Luczak II
Notes
1. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment outside Article V, Columbia Law Review, Vol. 94, No. 2 (Mar., 1994), pp. 457-508.
2. Amar- pg. 457.
3. Amar- pg. 457.
4. Amar- pg. 459.
5. Amar- pg. 459.
6. The Declaration of Independence
7. Amar- pg. 459.
8. Article V, U.S. Const.
9. Article V, U.S. Const.
10. Henry Paul Monaghan, We the People(s), Original Understanding, and Constitutional Amendment, Columbia Law Review, Vol. 96, No. 1. (Jan., 1996), pp. 121-177.
11. Amar, pgs. 469-475.
12. Monaghan, pg. 125.
13. Monaghan, pg. 126.
14. Amar, pg. 470.
15. Monaghan, pg. 144.
16. Monaghan, pg. 197.
17. Federalist 22, The Federalist Papers,
18. The Declaration of Independence.
19. Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor, 312 U.S. 287 (1941)
20. Milk Wagon Drivers Union of Chicago.., Footnote 4.
21. Learned Hand, The Spirit of Liberty, National Association of Criminal Defense Attorneys Website, http://www.criminaljustice.org/public.nsf/ENews/2002e67?opendocument
22. A. E. Dick Howard, Magna Carta: Text and Commentary, University Press of Virginia, Charlottesville and London, 1964
23. Article V, U.S. Const.
24. Amar, pgs. 457-498.
25. George Washington Williams, What, If Any, Limitations Are There Upon the Power to Amend the Constitution of the United States?, The Virginia Law Register, New Series, Vol. 6, No. 3. (Jul., 1920), pg. 168.
26. Raoul Berger- The Transformation of the 14th Amendment, Harvard University Press, 1977, Cambridge, Massachusetts and London, England
27. Berger, pg. 3.
28. William P. Potter, The Method of Amending the Federal Constitution, University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 9, Volume 48 New Series. (Jun., 1909), pg. 590.
29. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, New Haven : Yale University Press, c1998.
30. Amar, The Bill of Rights…, pg. 221.
31. Amar, The Bill of Rights…, pg. 221.
32. William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights, New York University Law Review, October 1986, pg. 543.
33. Amar, The Bill of Rights…, pgs. 163-180.
34. Barron v. The Mayor & City Council of Baltimore, 32 U.S. 243
35. Amar, The Bill of Rights…, pgs. 164-165.
36. Bruce Ackerman, We the People, Cambridge, Mass. : Belknap Press of Harvard University Press, 1991.
37. Ackerman, pg 43.
38. Amar, The Consent.., pg. 508.
39. Monaghan, pg. 128.
40. Potter, pg. 593.
41. David Castro, A Constitutional Convention: Scouting Article Fives Undiscovered Country, University of Pennsylvania Law Review, Vol. 134, No. 4 (Apr., 1986), pg. 956.
Amar’s article argues that there is an avenue for the American people to achieve the ratification of a constitutional amendment without the procedure of amendment proposal or ratification indicated in Article V of the constitution.3 Amar states that a majority of the people can petition the government directly with an amendment proposal for constitutional convention, and that the government would be obligated to accept this proposal because of the incorporation in the constitution of the first principle of ‘popular sovereignty’ of the people -the power of ‘We the people’ to change or abolish government whenever we please.4 Amar states that such an amendment could be ratified by a simple majority of American voters.5 Amar argues that this principle is announced in the declaration of independence as a founding principle.
We hold these truths to be self- evident, that all men are created equal, that they are endowed by their creator with certain unalienable(natural) rights… that…governments…derive their just powers from the consent of the governed. That whenever any form of government becomes destructive of (its) ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.6
Amar then begins the elaborately constructed defense of his position with his premise. “Begin by noting what Article V emphatically does not say. It emphatically does not say that it is the only way to revise the Constitution”.7 I disagree. A simple and careful straightforward reading of Article V shows strong evidence in the text that Article V does say in a strong sense that the two procedures for amendment proposal are the only ways for amendment proposal. Let’s look at the words of Article V:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”..8
Article V enumerates two methods, which according to the Article “in either Case, shall be valid as Part of this Constitution”. Obviously the key words with regard to the simple incorrectness of Amar’s premise are the words- “In either case, shall be Valid”. ‘Either’ is an exclusionary conjunction which limits the scope and significance of the connection to a choice between one term under consideration or the other term under consideration. The phrase ‘either one OR the other’, always denotes directly a choice between two. The word ‘Either’ groups only two terms in the English language- while eliminating the inclusion of any other possible choices, unless otherwise indicated in the language preceding or following. There is no such language in the text of Article V that otherwise indicates any other choices. In other words, the text says clearly: there are two methods to propose an amendment that are valid- and your choices are only between one method or the other.
Article V needs no other clause indicating exclusion of other modes of amendment outside of this language because the restriction is achieved by the economy of use of the limiting conjunction ‘either’, which confines the choice options, while excluding all others, solely within the text present in Article V. The phrase “shall be Valid” thus confers validity on what is limited by the previous limiting conjunction- ‘either one method of amendment proposal, or the other method, and no others, are valid methods of amendment proposal.’ The phrase “In either case” also indicates that both methods cannot be attempted simultaneously in the proposal of a specific amendment, otherwise the language would have read- ‘in both cases’, or ‘in these cases’. Furthermore, the use of the conjunction “or”, in the clause on ratification methods denotes the same restrictive choice structure- ‘one or the other’.
“when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress”;9
The plain language and meaning of the text of Article V couldn’t be clearer. The language in the paragraph enumerates the only two choices of method of proposing a valid constitutional amendment, describes the only two valid choices of methods of ratification of an amendment, and restricts the power of Article V for amending 3 provisions in the constitution until a specific future time. Amar’s premise upon which is built the remainder of his structure of argumentation for a valid non-enumerated constitutional right of amendment is clearly false through a careful reading of only the text of Article V. The elaborate construction that follows in Amar’s article based on this false premise thus easily falls apart.
What Amar’s evidence and arguments attempt to present is the support in an historical basis for a valid non-enumerated process of constitutional amendment. For these purposes the research fits the argument in only a weak sense. The combination is unconvincing as a historical case for the validity of constitutional amendment outside Article V, as Professor Monaghan has clearly demonstrated.10
First, the specific popular sovereignty language of needing a mere majority for ratification as listed by Amar in States Bills of Rights,11 was not adopted by the founders in the U.S. Constitution. Combine this with Monaghan’s research showing that the history demonstrates that the Founders attempted to limit the popular sovereignty of the people through the supermajority requirement in Article V12 and through the Federal use of elected representatives13 to propose amendments, and the case for a direct popular sovereignty submission of an amendment has no direct support in the research.
Second, the reference to ‘first principles’ to alter or abolish by revolutionary popular sovereignty indicated by Madison14 aren’t adopted into Article V either. There is thus a tremendous legitimacy problem with Amar’s proposal due to the discrepancy between the population requirement of only a majority for submission and ratification in Amar’s proposal, and the supermajority of ¾’ths of the States actually indicated in Article V. The previous lower thresholds proposed by delegates were rejected,15 indicating that the founders as a whole wanted the supermajority threshold. So Madison’s indication in the passage referenced by Amar doesn’t appear to be definitive of the founders’ intent, just one founder’s intent.
Some problems with Amar’s proposal: What argument would justify legitimately attempting to circumvent the supermajority requirement by a political party to pass an amendment that proposes drastic ideological and structural change, that couldn’t also be used to justify an opposite ideological and structural change by the opposing political party- should they achieve a majority? How does one judge that government has become ‘destructive’ enough to require alteration or abolition, while at the same time not be ‘destructive’ enough so that the voting fails at achieving a supermajority? And if it is destructive enough to change through extra-constitutional revolutionary means, how does one determine that government is destructive enough to alter with a majority, but not destructive enough to abolish? Or that government is destructive enough to abolish with only a majority, and not with the supermajority indicated for mere amendment by Article V?
Amendment proposal under the mere majority espoused by Amar, would include election rules that would heavily favor the current majority party, in attempt to make permanent the majority. Were Amar’s amendment proposal and ratification methods valid, after the 2004 elections, with republicans capturing 30 states, they would have been justified in claiming majority popular sovereignty right to: 1) repeal the 14th amendment, 2) make the ‘unborn’ Citizens, 3) eliminate all taxes for entrepreneurs, and more. I side with Monaghan’s admonition here,16 that time has proven that the supermajority requirement in Article V for limiting sweeping change through amendment was wise.
The stability provided by the supermajority requirement in Article V, combined with the Article’s ability to change, may very well be the balancing factors that have allowed our form of Government to last so long, with only the one serious attempt in our history to abolish it.
Furthermore, the examples of Popular Sovereignty in the preamble and infused throughout the Constitution listed by Amar actually work against Amar’s argument for the purposes of establishing the validity of amendment outside Article V, because they confer legitimacy that amendment of the Constitution through Article V is the exercise of the will of the people, is the very exercise of popular sovereignty, as difficult as it may be to achieve.
The non-enumerated constitutional amendment proposed by Amar has no legality through the constitution, and is such extra-constitutional. The right for the people to alter he cites in the Declaration of Independence is thus fulfilled through Article V, and this leaves the right to abolish- which is clearly an extra-constitutional revolutionary right only exercised when the people decide the constitution and form of government are ‘destructive’ enough to do so. Any attempt to alter the constitution outside Article V thus would legally have to be considered a complete discarding of the Constitution as a whole, and the reestablishment of a new Constitution, to validate this change.
The Unintended Benefit of Amar’s Popular Sovereignty Research in the ‘Consent…’
What Amar’s research unintentionally presents and supports is the historical basis and support for the popular sovereignty legitimacy and dynamism of Article V itself, and this combined with the locus of foundational constitutional authority in the Declaration of Independence phrase “the consent of the governed” thus undeniably infuses the dynamic principles of fundamental change, popular sovereignty, and ongoing citizen participation in the people’s interpretation of the Constitution and thus also in the interpretation and consideration of Supreme court decisions in the application of the Constitution, as undeniably supported by the original intention of the founders. The reading of popular sovereignty consent through the prism of Article V dynamism, is therefore essential to the application of the Constitution by Supreme Court decisions, and forever destroys the intellectual foundations of today’s static Originalism as authentic and consistent as a method of constitutional interpretation.
The three theoretical foundations of today’s static Originalism as a valid method of constitutional interpretation for jurisprudence are thus undeniably intellectually undermined by the history of the founding. 1) The position of Originalism based on the authority of the framers is undermined because the framers themselves deny primary authority, and place it rather in the agreement of the people. 2) The dynamism in Article V undercuts any static conception of original intent, because as the constitution can be modified, so can the intent and scope of the constitution through amendments that negate the authority of original scope and intent of the founders. 3) The historical fact of the birth of the constitution- ratification- through compromise undermines the Originalist argument of consistency, as fundamental change to these principles in the form of a future bill of rights was agreed to by the Federalists in the deal of ratification.
1) The Consent of the Governed
Federalist #22:
“The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority”.17
The Declaration of Independence:
“that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it”18
The authority given the constitution is not the authority derived from the pronouncements of great men, or from comparison of Great men to other men, and thus also not of the founders in comparison to today’s citizens. The authority given the constitution, the “just power” according to the Signers of the Declaration of Independence and the original fountain of all legitimate authority, according to Hamilton in Federalist #22, is derived from the “consent of the governed”. The consent of the governed is the agreement of those governed, to be governed in the manner prescribed by the words in the constitution. It is thus the agreement of the people with the law that creates the authority of the Constitution.
These are the words of the framers themselves- that the power comes not from the measure of the framers and their achievements throughout history, or the greatness of the words themselves, but comes from the agreement of the people with the words of the law issued by the Constitution. The Constitution thus starts not with the preamble, but with the “consent of the governed” through the ratification by the people that these are the words that announce our union, and that these are the words by which we agree to be governed.
The basis of Originalism, which lies for today’s static Originalists in the authority of the framers, and which looks to the intent of the framers in the drafting a specific provision, is thus located incorrectly by today’s originalists, and this basis is undermined by the words of the framers themselves. The framers clearly say that they themselves are not the authority, that the “just power”, the original authority is derived from the “consent of the governed”- i.e. the agreement of the people.
Thus the phrase the “consent of the governed”, combined with the power of fundamental change in Article V, not only serves as the original justification of authority of our constitution as it was established in 1787, but serves as a call to the participation of today’s ‘citizen-framer’ to consider the constitution, and how it is applied, and thus to grant consent, or deny consent and demand alteration, through first amendment freedom of speech and it’s extension to the states through the 14th amendment. It is not the call of founding fathers to lesser men to follow what the founders proclaimed, but the call of founding citizen-framers to current and future fellow citizen-framers across the ages to join in the continued revolution of representative self-government, to consider the constitution and its application and to give consent or deny consent, and demand alteration through the ballot box in reelecting or replacing their political representatives based on this consent or denial of consent. It is thus the primary duty of citizenship for the individual citizen to make known their consent or denial of consent of any act of government, including the application of the Constitution through a Supreme Court Decision.
This then directly calls for the continued participation of the people in the consideration of, and the granting or the denial of consent of the application of the constitution in cases by the opinions of the Supreme Court. The Supreme Court has the power to issue an opinion that radically changes the application of a provision, and according to the constitution it must be followed, but if it is an application that does not have the consent of the governed, the agreement of the people, then that opinion has no “just power”. This means that if a justice purposefully votes according to their own ideology, or because they think they know better, with conscious disregard of the disagreement of the people, then they vary fundamentally from the single central principle of the constitution of the founders, and thus have nothing in common with the founders.
Justice Black in Milk Wagon Drivers Union V. Meadowmoor, 312 U.S. 287, concurs.
“in reaching my conclusion I view the guaranties of the First Amendment as the foundation upon which our governmental structure rests and without which it could not continue to endure as conceived and planned. [Footnote 4] Freedom to speak and write about public questions is as important to the life of our government as is the heart to the human body. In fact, this privilege is the heart of our government. If that heart be weakened, the result is debilitation; if it be stilled, the result is death”.19
Footnote 4: “Thomas Jefferson, the great strategist of the campaign to bring about the adoption of the Bill of Rights, a campaign which he began even before the Constitution was adopted, said as to one of the guaranties of the First Amendment: 'The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter”. 20
Justice Black here refers to the importance of Freedom of Speech, i.e. the reason why Freedom of Speech is important. The importance of Freedom of Speech for Black; what is as important to government as the heart is to the human body; is the public conveyance of the true status and level of the consent of the governed to the elected representatives of government. Black refers here not only to the ability of the citizen to freely be able to speak if they so choose, but refers also to the very necessity that speech by the citizenry about the public questions be present- and that it must be free in nature- in order for representative self-government to properly function. Jefferson confirms in footnote 4 that the consent of the governed is nothing less than the opinion of the people, and that the conveyance of this consent or denial is vital to legitimate representative government that claims “just power”.
Today’s Originalism attempts to eliminate the foundational element of popular sovereignty at the core of government, by eliminating the citizen’s active role in the consideration of accepting or denying consent to a new application of the law in a Supreme Court decision. Originalism says ‘don’t consider for yourself, you are not competent, especially in comparison to these great men- so just follow’. The history of the intent of the framers is then substituted for the content and consequences of the scope and application of the words of the Court’s opinion. In the retelling of the history, in most cases lengthy and involved, the Ordinary citizen becomes educated as to the history and to the intent of the framer through this retelling, and in this education realizes they are not an expert, and thus quickly determines that their own competence fails in comparison. The offer to associate the citizen with the opinion of the ‘great men’- the framers- renders an easy and painless transfer of authority.
Today’s Originalism is thus not only a method of interpretation and jurisprudence, but simultaneously a technique of the Originalist camp to get the members of the public to give up their authority as citizen-framer to consider for themselves, through an association by proxy with the authority of the founders through the history of the founders intent. Now any citizen is free to do only this much in the interpretation of a constitutional ruling if they so choose, however they should be reminded that this was not the intent of the framers. The original opinion of the people; after considering the law and its application; properly constitutes what the framers termed the “consent of the governed”. The framers formed the words not from the extreme greatness and originality of themselves in generating new thought, but from the collective truth of freedom in the human condition observed and developed over the years. They merely recognized the truth of where liberty originates, as Learned Hand states that “Liberty lies in the hearts of men and women”.21 It was this truth that the founders followed in the words they used, many derived from the Magna Carta22 5 and ½ centuries earlier.
2) The Concept of Original Intent in the Constitution is Dynamic Because of Article V
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;..”23
Because of the almost unlimited scope of change of amendment in Article V, the original intention of the founders was not only that there would be change to the Constitution, but that this change included the possibility that what the founders originally intended for the scope and application of law, could itself be changed by the intentions of a future amendment’s drafters, and once ratified this fundamental change would then be undeniably valid.
This fundamental amplification of application and intent is precisely what the adoption of the 14th amendment accomplished. By introducing catalyst language that expands the application of the bill of rights and other rights to include binding the States, the 14th amendment lawfully and legitimately expanded the original intention of the drafters, through the intentions of John Bingham and ratified by the people. As demonstrated throughout his article, the 38 examples and arguments detailed by Amar24 provide overwhelming historical evidence that the right of the people to alter the constitution, through Article V, was irrefutable in the intent of the framers and are demonstrated throughout the speeches and documents of the framers. Amar’s research irrefutably demonstrates that it was clearly the original intent of the framers that change to the constitution- even fundamental change contrary to their original intentions- be able to occur. Thus Article V infuses the Constitution not with a rigid and static conception of original intent, but with a dynamic conception of original intent.
Hence in the history of Constitutional amendments and the Constitution itself there is a progression of original intent that starts with the original constitution, changes with the ratification deal in 1787, and this change is confirmed with the addition of the bill of rights in 1789, and then progresses again each time with the addition of each amendment, changing with the addition of the 13th, and 15th amendments, and changing fundamentally with the addition of the 14th amendment.
An original intent reading of the Constitution that opposes incorporation of the 14th amendment thus denies or ignores the dynamism of intent inherent in Article V and the Constitution’s history, and that interpreter cannot be deemed a faithful follower of a faithful doctrine of original intent, because the founders inserted this fundamental dynamism into the Constitution. Future citizens of the United States were thus clearly seen as fellow citizen-framers in the ongoing project of self-government.
The unintended significance and utility of Amar’s research and arguments in the article is thus the overwhelming historical evidence for support for the truly dynamic popular sovereignty character of the Constitution and Article V as it applies to an accurate depiction and meaning of the text of the Constitution over time, and of original intent over time. Amar’s research in this article establishes the evidentiary historical basis of Article V and first principle popular sovereignty dynamism beyond any doubt, and with this work provides the evidentiary basis for the argument that logically destroys any shred of credibility in the historical underpinnings of the position of those who interpret the Constitution based on a static conception of the intent of the original framers.
3) Madison’s Ratification Deal Undermines the Theory of Original Intent
Madison indicates in Federalist #40 that the addition of the Bill of Rights to the Constitution was essential to secure ratification by the anti-federalists.
“The states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been contemplated”.25
The signing statements of the “Massachusetts Compromise” and of other states ratifications, show that changing the Constitution of 1787 was a condition of their very ratification of it. The History of the founding shows that the deal to accept the Constitution was at the same time an agreement to change the Constitution.
Because they were the political minority and thus not in power, I contend that it was the anti-federalists concerns for their own personal freedom and rights that established the true level of what they thought constituted freedom. As they were the authorities of the states where they were from, they neither needed nor wanted civil liberties protection on the state level. But they did need protection from their political opponents, should the Federalists become authoritarian and oppressive once the constitution was ratified.
Acting in their own self-interests, the anti-federalists examined the guarantees in the main body of the Constitution, considered the future impact of the law on their own lives, and decided these guarantees weren’t enough. They needed to be guaranteed by those in power the rights of freedom of speech and of the press, freedom of peaceful assembly, freedom from the government establishment of religion, and guaranteed from those in power unjust persecution by due process protection. So they made a deal with the Federalists. They would agree to ratify the Constitution and come under the Federalists power- they would agree to be governed- if these freedoms were guaranteed in founding law. This was the source of the states ratification of the Constitution and the true historical moment of popular sovereignty for the Constitution, the true moment of the consent of the governed that provided legitimacy, and “just power”, to the 1787 Constitution.
The governing power didn’t really want to grant individual freedom and liberties, but to gain the consent of the governed it was forced to do so. This provides both the original and popular sovereignty model of free citizens for interpreting and considering their constitution. The anti-federalists didn’t merely listen and follow the arguments of those in power- the Federalists- they consulted English law, their own state constitutions, and the text of the main body of the Constitution set before them, and then determined how they wanted to be governed.
This interpretation of the main body of the Constitution by the anti-federalists was thus the original constitutional interpretation, not the one by Marshall in Marbury v. Madison, and the methods used by the Anti-federalists provide the model that should be followed to apply or change the Constitution. As indicated earlier, the deal to establish the Constitution was thus at the same time also a deal to amend the constitution. Through the dynamism and power of popular sovereignty in Article V, the anti-federalists changed the original intent of the Federalist framers, and brought the Constitution and their own civil rights to reality. Through their own concerns against the possible unjust suppression of the majority in power, and against what they wanted for their own people, the anti-federalists admitted the truth of what they considered the authentic level of freedom for themselves with the proposal of a bill of rights that limited the use of unjust Federal power against themselves.
The fact that the ratification of the constitution occurred out of compromise of the principles of the Federalist founders thus undermines the certainty of the Original intent of the framers argument for today’s static Originalists, because despite the intentions of the framers in the drafting of the 1787 original constitution, they changed this intent when they agreed to amend the constitution at a later date.
Raoul Berger’s- ‘The Transformation of the 14th Amendment’,26 provides the basis of the consistency argument for Originalism in the beginning of the book,
“the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the constitution was accepted and ratified by the Nation… be not the guide in expounding it, there can be no security for a consistent and stable (government), more than for a faithful exercise of its powers”.27
Consistency in the application of law to achieve consistency, security, and stability in the exercise of Government thus forms the core of Berger’s jurisprudence in expounding the Constitution. But how can this type of consistency be rationalized by Berger, when the generation of the Constitution came not from the ideas of the 1787 Constitution, but from the compromise of the ratification agreement to amend? Wouldn’t this mean then that historically the democratic principle of compromise sits at the root of finding social balance and order in the drafting of and acceptance of the law?
Madison’s phrase that “The sense in which the constitution was accepted and ratified by the nation”, does not only refer to the authority of the framers in the generation of the draft, but refers also to the acceptance and ratification of the Constitution by the citizenry- i.e.- the “consent of the governed”. Berger’s own evidence for his rationale equally proves the opposite, and is textually a popular sovereignty argument that Berger somehow turns into evidence of authoritative generation. Berger here is either blind to, or chooses to ignore, the fundamental popular sovereignty element at the heart of the text of his own rationale. Berger’s need for consistency from a single source of authority overwhelms the public role of the participation of the public in the acceptance of the law. Once again Originalism misreads the evidence.
What this means, practically, is that Berger denies today’s citizens the right to give or deny consent with regard to how they are governed under the Constitution. In Berger’s reading, only the citizens at the time of ratification were autonomous and self-governing, only they were free. Today’s citizen for Berger has no role in determining whether a Constitutional application through Supreme Court Opinion is accepted or not. For Berger, Citizens are obligated to only follow, and to obey. For Berger there is only one moment of the “consent of the governed”- the 1787 ratification.
The Federalists consulted, drafted the main body without a bill of rights, received negative feedback, equivocated, and then through the principle of democratic popular sovereignty, compromised in a deal with anti-federalists. The history is hardly the certainty of Moses coming down from the mountain as God’s chosen messenger and proclaiming the law as given by God. The popular sovereignty democratic principle of compromise, historically has as much place at the table of original intent as the selected words of individuals dressed up in authority.
4) Textualism as Faithful Originalism
“Justice Story Said, “Every word in the Constitution is to be expounded in its plain, obvious, and common-sense meaning, unless the context furnishes some ground to control, qualify or enlarge it.”28
The opinion of the people; to deny or give the consent of the governed; with regard to an application of the constitution through a supreme court opinion, is clearly just such a context. Textualist jurisprudence, combined with a consideration of the measure of consent of the governed, is thus a truly conservative and cautious Constitutional jurisprudence, and a truly faithful Originalism. It applies the law through the text of the constitution in a plain reading of the words on the page. These words change only when the proper methods of proposing an amendment have been followed, when the proper methods of ratification have been completed, and when the public denies the consent of the governed. Then it is left to the justices of the Supreme Court to apply any direct changes from the amendment and any changes to other Constitutional provisions that the new amendment may effect.
An example of a jurisprudence that thus reflects the real belief of follower of faithful Originalism- progressive original intent- would be found in the jurisprudence of Justice Black. Black’s well known textualist application followed from the words on the page, and the significance for the application of law for individual rights fundamentally changed with Black’s faithful interpretation of the text of the 14th amendment. Black recognized the nature of the change by which the prism of the words of the 14th amendment affected provisions involving individual rights, and he faithfully applied the law through this new prism. Black thus followed the original intent of the framers of the 14th amendment, which through Article V followed the intention of the drafters of the bill of rights, which through Article V followed the intention of the original framers of the Constitution. And so our Constitutional law progressed, and so original intent progressed, through the lawful mechanism of dynamism indelibly inscribed in Article V.
What implications does this have for theories of incorporation of the 14th amendment? Through the force of authority of Article V, the Bill of Rights and the 14th amendment, because they have been ratified by the people of the states and are thus law and must be applied, and with overwhelming public agreement, this collective authority deems that only a theory of total incorporation is truly valid.
Does this mean that the ‘selective incorporation’ advocated by Justice Brennan and the ‘refined incorporation’ advocated by Amar are wrong approaches? No. Contrary to their own pronouncements and attempts to distinguish themselves through definition, it is my opinion that both Brennan and Amar ARE in fact under the umbrella of ‘Total incorporation’. There’s no evidence in either of their theories that argues against the fundamental change that the text of the 14th amendment has on the Bill of rights and other individual Constitutional rights.
In fact, evidence exists for the opposite. Amar’s chapter- ‘Reconstructing Rights’ in his outstanding book ‘The Bill of Rights’,29 argues and details incorporation through a type of Total incorporation approach. It’s not that all the amendments ‘don’t incorporate’ it’s just that incorporation of the words of the text of the 14th amendment have no effect on Constitutional application for these amendments. Amar’s question – “whether a (right) is a personal privilege- that is- a right of individual citizens”, 30 announces a principle of examination for evaluating a provision. His question is a tool of interpretation and application that identifies the common characteristics of individual provisions of the Constitution that are affected in application by the words of the text of the 14th amendment. The fact that he applies this question to how the 14th amendment affects a provision evidences his adherence to attempt to apply the 14th amendment throughout the entire Constitution.
It is virtually the same with Brennan’s theory of ‘selective incorporation’, although his terminology of “fundamental provision”31 is on the face of it more vague than Amar’s examination principle of ‘refined incorporation’. In both cases Brennan and Amar deal with the specific application of the words of the text as they affect or do not affect application of all other provisions of the constitution. Their disagreements of application are thus within the rubric of the attempt of total incorporation. As Justice Brennan has written:
“The position of the states in Gideon illustrated that federalism is better served by incorporation of the guarantees of the Federal Bill than by a case-by-case assessment of the degree of protection afforded to particular rights”.32
All provisions of the Bill of Rights need not be affected equally by the 14th amendment, but the examination by the interpreter to determine if and how much they do- that is the mark of a follower of ‘Total Incorporation’.
‘Total incorporation’ thus looks to see if the text of a provision is affected by the text of the 14th amendment, and attempts to apply it. If a provision ‘incorporates or not’ is thus determined between the interchange in meaning in the relation of the words between the provision and the 14th amendment, as applied by the interpreter. Not looking to see if the text of the 14th amendment changes the application of the provision, based on the antiquated theory of static Originalism- this is the hallmark of the opponent of Incorporation. The interpreter who does this denies the validity of the 14th amendment, and thus denies the revolutionary dynamism inscribed in the Constitution in Article V and its implications for the concept of Original Intent. This interpreter thus flies directly into the face of the law and the framers. Brennan and Amar are not this kind of interpreter, and whether they thought so are not, are both much closer to Black’s Jurisprudence with regard to the application of the 14th amendment than either of them thought. ‘Selective incorporation’ and ‘refined incorporation’ are thus different types of applications under the umbrella of Total incorporation’ of the 14th amendment.
The textual reading of the 14th amendment by; Amar in Chapter 8 of ‘The Bill of Rights’;33 is defining for analysis to determine whether the 14th amendment intended to incorporate the Bill of Rights. From Amar’s reliance on the Supreme Court’s Opinion in Barron- “Had the framers of these amendments intended them to be limitations in the powers of the state governments, they would have imitated the framers of the original Constitution, and have expressed that intention.”34 - to the equivalences he demonstrates between the terms in the Bill of Rights “rights and freedoms”, and the terms “privileges and immunities” in the 14th amendment, to the inverted equivalence between the phrasing introducing both the Bill of Rights and the 14th amendment, “Congress shall make no law..” and “No state shall abridge..”, this chapter is a defining textual reading and argument for the incorporation of the bill of Rights.
That Amar shows that Bingham drafted the amendment specifically with the intention to respond to and reverse the Barron opinion just adds further defeat to today’s static originalists that the 14th amendment was intended to incorporate the Bill of Rights.
“In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866,…I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United State, the Chief Justice said: ‘Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Acting upon this suggestion I did imitate the framers of the original Constitution…..imitating their example and imitating it to the letter”.35
5) From the sources of influence, through research, to the basis of a New Citizenship
I contend there are two sources that predominantly influenced Amar’s ‘Consent of the Governed’. The first is Bruce Ackerman’s characterization in his book ‘We the People’36 that the three most transformational constitutional changes in U.S. history were extra-constitutional. The second is Amar’s implicit admission that the equal rights amendment influenced his position of amendment outside of Article V, to the point that the self-evident truth that women are created equal, justifies its validity.
First, Ackerman’s central paragraph on constitutional change in his book “We the People”:
“Founding Federalists > Illegal Constitution; Reconstruction Republicans > formal Amendments; New Deal Democrats > Judicial Rediscovery of Ancient truths: this schema suggests a subtle but unmistakable decline in the constitutionally generative capacities of the American people. Apparently, we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”.37
Next, from the last two paragraphs of ‘The Consent of the Governed’:
“Women today constitute a majority of both the Massachusetts and American polities. They are today governed under a federal Constitution largely the making of men who died long ago, men who may not have had their interest foremost in mind. If either the Massachusetts or American People is sovereign, women- in combination with like minded men- could by simple majority vote alter or abolish patriarchal rules in the federal Constitution… For me at least, one of the best reasons for embracing the “First Theorem” is the self-evident truth that women, too, are created equal”.38
Briefly, I contend that Ackerman’s characterization in ‘We the People’, that all three instances of revolutionary change in the history of the Constitution- the founding, the 14th amendment, and the new deal- are constitutional. The succession of the Southern states from the union provided a constitutionally valid supermajority of Republicans to fashion the conditions for the successionists’ re-inclusion into the political structure of the United States- it was therefore a legal supermajority within the authority of the Constitution, and thus a legal ratification of the 14th amendment. Roosevelt’s court packing, although unusual in U.S. history, is certainly within the Constitution. Only the ratification of the original constitution was revolutionary, but of necessity also just inside the legal frame of the constitution, and certainly within the spirit of the declaration, and should be considered a part of the original declaration of the founding of the nation that is the constitution. The ratification was in essence the declaration of the founding of the nation, and thus an integral part of the constitution. As I noted earlier, ratification comes first, then the preamble.
Second, it is my contention that Ackerman’s accurate depiction of the extraordinary nature of the three transformational Constitutional events and his conclusion from this that “we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”, heavily influenced Amar’s thought concerning the chances of ordinary passage of the Equal Rights Amendment. This, combined with Amar’s willingness to wield his academic research and polemical sword in the name of a cause he believed in, led to the intellectual overreaching in his attempt to match the history of popular sovereignty with the possible validity of constitutional amendment outside Article V, and with this work provide the intellectual basis for Women to submit a popular sovereignty based Equal Rights Amendment, and then ratify it.
Even though the argument in “The Consent of the Governed..” is misdirected because of what Monaghan calls Amar’s “personal philosophy”,39 the research that came from it was impeccable, and forms the basis for the absolute destruction of the intellectual and historical foundations of static Originalism, and helps lead to the reformation of a more dynamic popular sovereignty Originalism that is faithful to the first principles of federalist self-government indicated in the Declaration of Independence and Federalist #22.
The new Faithful Originalism is formed from the call through the ages from the founders; in the Declaration of independence, through Article V and the first and 14th amendments; to today’s citizen-framers, to consider the history, consider the words of the Constitution, and consider how the application of Supreme Court Opinions and new laws affect both our freedom, and our social order. Then it is the responsibility of today’s citizen to grant or deny their consent, and to make this choice known to their elected representatives. From this call, Supreme Court Justices must consider this factor in the application of the constitution in all cases, if their decisions and opinions are to have “just power”.
The advent and development of communication and information technology provides today’s citizen new tools by which to easily obtain information on Constitutional issues as well as state and local government issues of all kinds. Citizens can then make their decisions, and register their agreements or disagreements more easily and accurately. It is therefore also the responsibility of the Courts as appointees who wish to be in league with the founders, and apply the law through opinions that have ‘just power’, to know and consider the status of the citizen’s consent with regard to a case. It also at the same time accentuates the active role of today’s citizen-framer, and makes the call from the framers a responsibility of the citizen to participate. It is a call to participate in the ongoing revolution of representative self-government.
George Washington said that:
“The basis of our political system is the right of the people to make and alter their Constitution of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all”.40
Providing the opinion of the people, the consent of the governed, is just such an “explicit and authentic act”. This is the “New Citizenship” call of responsibility to any voter with access to phone, computer and internet service- to obtain information, educate themselves, and then march alongside the framers throughout and across history and raise their voices, and call and/or write letters to the editor and/or to their representatives. It is the citizen’s duty to vote and communicate their agreement or disagreement to their elected representatives, and to the Courts.
“(James) Wilson proclaimed the power of the people in the strongest of terms, “That the supreme power, therefore, should be vested in the people, is…the great panacea of human politics. It is a power paramount to every constitution, inalienable in its nature, indefinite in its extent. For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form..”41
In these ways citizens make known the consent of the governed in “specific and authentic acts of the whole people”. By doing this today’s citizens do their duty to provide government with the measure of the “original source of all authority” and “just power”, in and through each and every individual citizen’s denial or granting of consent.
Richard J. Luczak II
Notes
1. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment outside Article V, Columbia Law Review, Vol. 94, No. 2 (Mar., 1994), pp. 457-508.
2. Amar- pg. 457.
3. Amar- pg. 457.
4. Amar- pg. 459.
5. Amar- pg. 459.
6. The Declaration of Independence
7. Amar- pg. 459.
8. Article V, U.S. Const.
9. Article V, U.S. Const.
10. Henry Paul Monaghan, We the People(s), Original Understanding, and Constitutional Amendment, Columbia Law Review, Vol. 96, No. 1. (Jan., 1996), pp. 121-177.
11. Amar, pgs. 469-475.
12. Monaghan, pg. 125.
13. Monaghan, pg. 126.
14. Amar, pg. 470.
15. Monaghan, pg. 144.
16. Monaghan, pg. 197.
17. Federalist 22, The Federalist Papers,
18. The Declaration of Independence.
19. Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor, 312 U.S. 287 (1941)
20. Milk Wagon Drivers Union of Chicago.., Footnote 4.
21. Learned Hand, The Spirit of Liberty, National Association of Criminal Defense Attorneys Website, http://www.criminaljustice.org/public.nsf/ENews/2002e67?opendocument
22. A. E. Dick Howard, Magna Carta: Text and Commentary, University Press of Virginia, Charlottesville and London, 1964
23. Article V, U.S. Const.
24. Amar, pgs. 457-498.
25. George Washington Williams, What, If Any, Limitations Are There Upon the Power to Amend the Constitution of the United States?, The Virginia Law Register, New Series, Vol. 6, No. 3. (Jul., 1920), pg. 168.
26. Raoul Berger- The Transformation of the 14th Amendment, Harvard University Press, 1977, Cambridge, Massachusetts and London, England
27. Berger, pg. 3.
28. William P. Potter, The Method of Amending the Federal Constitution, University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 9, Volume 48 New Series. (Jun., 1909), pg. 590.
29. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, New Haven : Yale University Press, c1998.
30. Amar, The Bill of Rights…, pg. 221.
31. Amar, The Bill of Rights…, pg. 221.
32. William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights, New York University Law Review, October 1986, pg. 543.
33. Amar, The Bill of Rights…, pgs. 163-180.
34. Barron v. The Mayor & City Council of Baltimore, 32 U.S. 243
35. Amar, The Bill of Rights…, pgs. 164-165.
36. Bruce Ackerman, We the People, Cambridge, Mass. : Belknap Press of Harvard University Press, 1991.
37. Ackerman, pg 43.
38. Amar, The Consent.., pg. 508.
39. Monaghan, pg. 128.
40. Potter, pg. 593.
41. David Castro, A Constitutional Convention: Scouting Article Fives Undiscovered Country, University of Pennsylvania Law Review, Vol. 134, No. 4 (Apr., 1986), pg. 956.
Monday, August 20, 2007
The Basis of the ‘Spirit of Liberty’ & It's Continuing Restoration
Judge Learned Hand states in his famous speech `The Spirit of Liberty' :
"What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, nearly two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest".
What Judge Hand refers to in the first answer- that the "spirit of liberty is the spirit which is not too sure that it is right"- is the very basis of the need for law, which is based in the fundamental character of the human condition, which is human fallibility. The human body of a single man is fallible, the power of a single man is fallible, and human judgment is fallible, and because of these basic human fallibilities there arises the need for community, for the help and power of others to protect us, and to join us and make us greater. There arises the need for community and the help and power of others to help us determine the truth.
By myself, I am weak, but with others together, there is a strength and power accessible to the individual that is non-existent for merely oneself. That strength is the pronouncement and enforcement of common imperatives derived from the common fallibilities, fears, and hopes that reside in each man, woman and child, and that allow us to be free. These common characteristics derived from the `sensus communis', the `common sense' we all possess, form the basis of a collective wisdom that dictates what is allowable and what is not in our common quest to be free from each other, while at the same time being free with each other.
The fallibility of judgment present in the spirit which is "not too sure", forms the basis of the necessity for a common objective process for determining whether someone has indeed violated one of the common strictures that construct our freedom. Since I am fallible, others are fallible by themselves as well, and with this basic distrust in the judgment of authority of a single man or woman, let us then put down a set of procedures to follow that we all agree upon that allow all of us to come to a more objective judgment that someone is guilty of violating a stricture.
This objective method, this `due process' is thus integral to the spirit of liberty, because it forms a more objective basis for judgment, a common judgment, where the truth of the facts, as WE discover them and as WE agree on them together, determine guilt in the matter separate from the authority and musings of one man or woman. So we rely on each other and our commonly derived process to come to this judgment of the violation of strictures we agree upon, and impose upon each other.
Because of these fallibilities we must seek to understand the minds of other men and women, which provide knowledge and wisdom other than our own, and because we live with others, liberty is found not only in the rebellious ability to act on one's own, for oneself, but is found within the order and freedom created from our common strictures. Freedom from oppression, freedom from want, freedom from violence, and in these ordered freedoms I am free from the tyrannies that would be imposed by others, and they are free from those that would be imposed by me.
Because of this common fallibility, this `common sense', we are like to each other, and in this common truth exists the basis for equality under the law- that we should weigh the interest of others alongside his own without bias, because the basis upon which we are free relies upon the common shared dignity of personhood, the truth of the facts of the case, and not the assertion of power of those in authority.
Both the `great' and the `least' share the quality of human fallibility, as all men share the traits of our common humanity. No man is superhuman, infallible, and thus above the rest, and so we should be heard the same, and judged the same, with regard to the truth of the facts, derived from our commonly derived process, our `due process', as equal under the law. Therefore there is no liberty by oneself, but only in the order among men, in and through community.
It is a liberty of order- an `ordered liberty' that balances individual freedoms with the freedom of the community. The spirit of such a liberty is thus never authoritarian, but democratic and thus autonomous, with a faith in the common goodness of other citizens and a faith in their voices to say the truth of the facts as they see it, about the law that we give to ourselves.
The 'Spirit which is not too sure that it is right'; based in our fallibility; also denotes that because we are fallible, the attempt to achieve the highest liberty for our society is an ongoing process of striving, or self-improvement. We must constantly strive to achieve greater liberty through our laws, and through our society, and thus continuously restore in law the spirit that resides in our hearts.
The spirit of liberty, as described so eloquently by Judge Hand, is thus found in the spirit of community, formed from the respect of others, from the Spirit that lies in the heart of each man, woman, and child, and created from the strength of our mutually fallible nature and our mutually empowering reliance on each other.
"What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, nearly two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest".
What Judge Hand refers to in the first answer- that the "spirit of liberty is the spirit which is not too sure that it is right"- is the very basis of the need for law, which is based in the fundamental character of the human condition, which is human fallibility. The human body of a single man is fallible, the power of a single man is fallible, and human judgment is fallible, and because of these basic human fallibilities there arises the need for community, for the help and power of others to protect us, and to join us and make us greater. There arises the need for community and the help and power of others to help us determine the truth.
By myself, I am weak, but with others together, there is a strength and power accessible to the individual that is non-existent for merely oneself. That strength is the pronouncement and enforcement of common imperatives derived from the common fallibilities, fears, and hopes that reside in each man, woman and child, and that allow us to be free. These common characteristics derived from the `sensus communis', the `common sense' we all possess, form the basis of a collective wisdom that dictates what is allowable and what is not in our common quest to be free from each other, while at the same time being free with each other.
The fallibility of judgment present in the spirit which is "not too sure", forms the basis of the necessity for a common objective process for determining whether someone has indeed violated one of the common strictures that construct our freedom. Since I am fallible, others are fallible by themselves as well, and with this basic distrust in the judgment of authority of a single man or woman, let us then put down a set of procedures to follow that we all agree upon that allow all of us to come to a more objective judgment that someone is guilty of violating a stricture.
This objective method, this `due process' is thus integral to the spirit of liberty, because it forms a more objective basis for judgment, a common judgment, where the truth of the facts, as WE discover them and as WE agree on them together, determine guilt in the matter separate from the authority and musings of one man or woman. So we rely on each other and our commonly derived process to come to this judgment of the violation of strictures we agree upon, and impose upon each other.
Because of these fallibilities we must seek to understand the minds of other men and women, which provide knowledge and wisdom other than our own, and because we live with others, liberty is found not only in the rebellious ability to act on one's own, for oneself, but is found within the order and freedom created from our common strictures. Freedom from oppression, freedom from want, freedom from violence, and in these ordered freedoms I am free from the tyrannies that would be imposed by others, and they are free from those that would be imposed by me.
Because of this common fallibility, this `common sense', we are like to each other, and in this common truth exists the basis for equality under the law- that we should weigh the interest of others alongside his own without bias, because the basis upon which we are free relies upon the common shared dignity of personhood, the truth of the facts of the case, and not the assertion of power of those in authority.
Both the `great' and the `least' share the quality of human fallibility, as all men share the traits of our common humanity. No man is superhuman, infallible, and thus above the rest, and so we should be heard the same, and judged the same, with regard to the truth of the facts, derived from our commonly derived process, our `due process', as equal under the law. Therefore there is no liberty by oneself, but only in the order among men, in and through community.
It is a liberty of order- an `ordered liberty' that balances individual freedoms with the freedom of the community. The spirit of such a liberty is thus never authoritarian, but democratic and thus autonomous, with a faith in the common goodness of other citizens and a faith in their voices to say the truth of the facts as they see it, about the law that we give to ourselves.
The 'Spirit which is not too sure that it is right'; based in our fallibility; also denotes that because we are fallible, the attempt to achieve the highest liberty for our society is an ongoing process of striving, or self-improvement. We must constantly strive to achieve greater liberty through our laws, and through our society, and thus continuously restore in law the spirit that resides in our hearts.
The spirit of liberty, as described so eloquently by Judge Hand, is thus found in the spirit of community, formed from the respect of others, from the Spirit that lies in the heart of each man, woman, and child, and created from the strength of our mutually fallible nature and our mutually empowering reliance on each other.
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