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Thursday, June 30, 2005

Original Intent Preserves Our Freedom
Opinion © 2005, by Guy L. Evans

June 29, 2005

Listening to the Hugh Hewitt show last Monday, June 27, 2005, I heard Professors John Eastman and Irwin Chemerinsky go another round on the subject of the Founders’ original intent. Eastman’s position is that the Founders’ original intent must always be considered when interpreting the Constitution, and Chemerinsky’s position is that it is impossible for us to know the Founders’ original intent, and that the Founders’ original intent must never be considered when interpreting the Constitution.

To be clear on one subject, the original intent of the Founders’ is important only in those instances where the Constitution has not been amended. It is interesting to understand the Founders’ original intent on the prohibition against a Federal capitation tax; however, the passage of the 16th Amendment rebutted the Founders’ original intent.

The original intent of the Amenders of the Constitution must also be taken into account in any discussion of the Founders’ original intent. The Constitution stands on its own merits regardless of whether the Founders wrote the controlling passages or the Amenders wrote those passages.

Therefore, any discussion of the original intent of the Founders, Writers, and Amenders of the Constitution must include the original intent of the Ratifiers of the Constitution. The Constitution did not come into being merely because it was intended, written, or amended. It came into being and has the force of law because it was ratified. The rest of this essay will refer mostly to the Ratifiers of the Constitution and their original intent.

What does “original intent” mean?
The term “original intent” as used by Eastman and Chemerinsky means that the Ratifiers of the Constitution actually meant something when they wrote and approved the language that appears in the pages of the Constitution. The Constitution is a legal document. Every word that appears in the Constitution has been debated, challenged, and finally approved by both the House of Representatives and by the Senate. There are no words in the Constitution whose meaning has not been scrupulously examined and vigorously debated.

Chemerinsky’s argument that the original intent of the Founders cannot be known is absurd on two counts. First, the Founders wrote extensively about their original intent before, during, and after drafting the Constitution. They wrote so much about their original intent that it is daunting to try to read everything they actually wrote on the subject. Second, if it is impossible to know the original intent of the Founders, then it must be equally impossible to know the original intent of the Amenders and the Ratifiers of the Constitution.

However, it is not only possible, but in fact quite easy to understand the original intent of the Ratifiers. For example, we know the original intent of the Founders in prohibiting a capitation tax, and we know the original intent of the Ratifiers who approved the 16th Amendment which permitted a capitation tax. This is also true with the 13th and 14th Amendments, and all the other Amendments.

To be clear, Chemerinsky offers the argument about not knowing the original intent of the Founders for only one reason, and that is to assert that someone has the authority under law to construe the words of the Constitution to mean whatever they like. This assertion is also wrong. Disregarding, de-legitimizing, or refusing to acknowledge the original intent of the Founders and Ratifiers of the Constitution is no different from refusing to acknowledge the original intent of the parties who enter into a contract. Try this: Get on the Internet, and find a contract in Japanese. If you read Japanese, then look up a contract on some language you can’t read. Now, try to read the contract. You can’t make any sense of it, can you? Of course not. However, even if you can’t make any sense of the contract, you have no right under law to interpret or construe the contract as you choose. The only people who have such authority are the parties who ratified the contract. To deliberately misunderstand the contract would be fraud, and to unintentionally misunderstand the contract does not validate any resulting misbehavior.

A word about historicism.
Why does Professor Chemerinsky make the assertion that it is impossible to know the Founders’ original intent? A word about historicism is in order.

Historicism is the idea that the people’s understanding of the truth changes from age to age. For example, historicism argues that Aristotle has nothing to say to modern people because Aristotle understood the world so differently that modern people cannot comprehend what Aristotle is saying.

Gosh.

All truth is eternal. What was true in Aristotle’s time is equally true today. Aristotle stated that every proposition is a statement of fact, that wisdom is the knowledge of first principles and final causes, and that the Earth was in the shape of a globe (this from observing the shadow that the Earth casts on the Moon during a Lunar eclipse). Aristotle formulated the science of logic, which governs all the other sciences. Without Aristotle, it is unlikely that we would be engaged in any reasoned arguments.

Historicism means that each epoch can only be understood by the people who lived in that epoch, that literature, philosophy, religion, and science do not contain timeless arguments, that past generations have nothing to say to future generations, and that all ideas having reached a certain longevity have no validity.

Historicism must necessarily presuppose that historicism and all the ideas that emanate from it will become invalid after a certain number of years. The obvious question arises that if, for example, the idea of individual liberty was valid in one epoch, why is it not valid in another? Also, on what basis is any idea determined to be valid in any epoch? On what basis is historicism determined to be valid in this epoch or in any other?

Historicism defeats itself by its very definition. Historicism cannot verify its own validity in this or any other epoch. Historicism poses a serious threat to us today because it dismisses the idea of individual liberty on which our nation is founded as being quaint but incomprehensible, seeking to substitute the notion of rights (actually, privileges) dispensed by government.

Historicism incorrectly de-legitimizes the knowledge obtained at great cost from ages past, defames great people from ages gone by, and thereby deprives modern people of critical intellectual resources. It would be the apex of stupidity for each generation to waste time inventing the wheel or discovering how to harness electricity. Historicism is a method whereby lazy students excuse themselves from the hard work of learning.

Professor Chemerinsky relies on historicism to de-legitimize the original intent of the Founders. This removes the authority the Constitution has over government, and permits government to assert authority over the Constitution. Once government has the authority to determine how the Constitution limits the power of government, government will eventually discover that the Constitution doesn’t limit their power at all.

What does “interpret the Constitution” mean?
To interpret means to make something understandable. In interpreting the Constitution, we seek to understand what the Ratifiers meant by the language that they used. The 16th, 13th, and 14th Amendments serve as clear examples of the value of interpreting the Constitution in order to make it understandable. For example, neither the 13th nor the 14th Amendments mention secession or the Civil War, yet both Amendments were written in response to that war. Disregarding secession and the Civil War when trying to understand these two Amendments leaves the reader wondering why parts of the 5th Amendment are reasserted in the 14th Amendment, and why the slavery provisions of the original Constitution are overturned in the 13th Amendment.

Chemerinsky argues that the original intent of the Founders cannot be known, and that it is the duty of each generation to interpret the Constitution in a way that makes sense to only that generation. However, as used by Chemerinsky, the term “interpret” does not mean to make something understandable. The way Chemerinsky uses the term “interpret” actually means to change the meaning of something to suite your understanding and prejudices. In other words, when Eastman talks about interpreting the Constitution, he is talking about something entirely different from Chemerinsky’s meaning of interpreting the Constitution.

Chemerinsky means that whoever is in a position to assert the authority to interpret the Constitution (currently, several dozen judges) should have the authority at their sole discretion to change the meaning of the Constitution to suite their personal understanding and prejudices.

In its final state, Chemerinsky’s argument is that there is no truth contained in the Constitution, and that no true assertions can be made about the Constitution. His argument is that the meaning of the Constitution is nothing more than a matter of opinion, and that reasonable people can agree to disagree. Being nothing more than a matter of opinion, it is critical to the left to make sure that people who share their opinions maintain the authority to interpret the Constitution.

I have heard the argument between Chemerinsky and Eastman often enough to realize the Eastman either doesn’t understand what Chemerinsky is doing, or is too polite to confront him on this key point. They are not talking about the same thing. To interpret the Constitution means to make the words that the people who wrote and ratified the individual provisions of the Constitution understandable to the current audience. When Chemerinsky talks about interpreting the Constitution, he means that the meaning of the words that the people actually ratified should be disregarded and de-legitimized in favor of promoting the ideology, beliefs, and wishes of the people who currently have the authority to enforce the law.

What does “ratification” mean?
Ratification means that the people of the United States have agreed to be governed by the provisions of the Constitution. Their agreement is mostly passive in that each session of the U. S. Congress presents the people of the United States with another opportunity to amend the Constitution, and by not amending it, the people passively ratify it. Active ratification only happens when a new Amendment is ratified in accordance with the provisions set forth in the Constitution.

Any method of altering the effect of the Constitution, e.g., construing the language of the Constitution in such a way as to change its original meaning, is illegitimate, and in my opinion despicable. Such deconstruction of the meaning of the Constitution has been done mostly by the courts.

The consequences of disregarding “original intent”.
The first consequence of disregarding the original intent of the Founders is to de-legitimize the meaning of the language in the Constitution. De-legitimizing the language in the Constitution turns it into senseless babbling, and invalidates government. A question for the people who are unable or unwilling to understand the Founders’ original intent: Why does the Congress convene every two years if it is impossible to know the Founders’ original intent?

The Constitution of the United States is the legal document that by it’s original ratification and subsequent ratifications has been acknowledged by the people of the United States from generation to generation to possess authority over the structure, scope, and power of the Federal Government.

The Constitution sets and enforces limits on the behavior of government. The Constitution is the expression of the American people’s intent and determination to govern themselves.

De-legitimizing the original intent of the Founders also has the effect of de-legitimizing the original intent of every generation of Americans who either actively or passively ratified the Constitution. De-legitimizing the original intent of the Founders de-legitimizes the will of the people, and ultimately de-legitimizes self-government.

The final consequence, and the most thoroughly destructive, of disregarding the original intent of the Founders is that the power to enact and enforce laws is removed from the people of the United States and illegitimately vested in several dozen judges. By de-legitimizing the original intent of the Founders, the people of the United States have no foundation upon which to rest their argument in favor of self-government.

Under the doctrine of “the Constitution means whatever the people in power say it means”, popular government degenerates into power struggles between political groups vying for legitimacy in the eyes of the courts. Positive arguments in favor of reasoned positions are replaced by personal defamation. Reason is replaced by popularity, and wisdom by charisma.

No political or legal argument can be made on the basis of established law. What matters in our modern “the Constitution means whatever the people in power say it means” legal system is political influence. It becomes more and more difficult for people in the political minority to assert legitimacy for their claims.

The resolution.
It is the responsibility of each generation of Americans to educate themselves in the history and meaning of the Constitution. So fortified, they cannot be easily swayed by demagogues.

I still have many questions about the Constitution. However, with the little knowledge I do possess, I am utterly unmoved by Chemerinsky’s arguments in favor of bending the Constitution to suite the political ends of the left wing of the Democratic Party.

The United States is a nation of laws. The left’s attempts to gain power by de-legitimizing the original intent of the Founders have been, and will continue to be, a catastrophe for all of us.

Guy L. Evans
Aurora, Colorado

Monday, June 27, 2005

Incredible Perseverance
Opinion © 2005, by Guy L. Evans

June 27, 2005

There is an old tale about a person hiding in a cave to evade capture. This hiding person watches as a spider repeatedly tries to spin a web across the mouth of the cave and repeatedly fails. The spider doesn’t give up. She eventually succeeds. When the people who are hunting for the hiding person see the spider web across the mouth of the cave, they conclude that no one could be hiding in the cave, and they search elsewhere.

The moral of the story is to never give up.

Let me add this. I found a spider in my bathtub while I was showering. I was convinced that the poor little thing had drowned, but I thought that I ought to give the little creature a fair chance at survival.

I placed her lifeless body on a piece of tissue, and placed the tissue in the wastebasket so that I could clearly observe whether the spider had moved. After an hour, I was convinced that the little creature was dead, and I felt sad.

The next day, she was gone. I took the wastebasket outside (I like spiders outside, not inside), and carefully removed the tissue. Sure enough, the spider was hiding underneath, alive and well and in a huge hurry to get away.

I let her go under a tree, wished her a happy spider life and a fond farewell.

The incredible perseverance of this little spider reminds me that even if you don’t give up, victory is not assured, but if you do give up, failure is inevitable.

Guy L. Evans
Aurora, Colorado

Friday, June 24, 2005

Karl Rove and the Barking Dogs
Opinion © 2005, by Guy L. Evans

June 24, 2005

I found this piece by Karl Rove at the New York Post. The New York Post now requires a subscription.

Rove said some interesting things in his article, but I think he made one mistake, a mistake I think many conservatives make, and one which I wish they would learn to stop making. Rove said:

But perhaps the most important difference between conservatives and liberals can be found in the area of national security. Conservatives saw the savagery of 9/11 in the attacks and prepared for war. Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers. In the wake of 9/11, conservatives believed it was time to unleash the might and power of the United States military against the Taliban.
He later added:

Conservatives saw what happened to us on 9/11 and said we will defeat our enemies. Liberals saw what happened to us and said we must understand our enemies. Conservatives see the United States as a great nation involved in a noble cause of self-defense. Liberals are concerned with what our enemies will think of us and whether every government approves of our actions.
The liberals Rove is referring to inhabit the denizens of MoveOn.Org and paranoid realm of Michael Moore. Paranoia is their defining characteristic.

Rove said, “Liberals saw what happened to us and said we must understand our enemies.” This is incorrect. The paranoid co-dependents who populate and influence the Democratic Party do not want to understand our enemies. They do not want to understand the terrible truth about the motives of our enemies, and they do not want to understand the hopelessness of seeking reconciliation with our enemies.

The liberals Rove speaks of are committed to a romantic fantasy that somehow we can find common agreement with the people who are giving their lives to kill us and defeat America. The liberals want to believe that somehow the insane fanatics will actually take sympathy on them. The liberals are desperate to believe that Hillary Clinton can persuade Osama bin Laden to stop being a terrorist the same way they believed that Bill Clinton could persuade North Korea to stop building nuclear weapons. He didn’t and they did.

The terrorists frighten the liberals. One way that liberals respond to being frightened is to grovel, and to offer restitution even when no restitution has been demanded. This is how they behave toward their foreign enemies. The other way is to become incensed and to display open, exaggerated hostility. This is how they behave toward their domestic enemies.

Both responses are inappropriate and self-sabotaging--in other words, foolish. The liberals have the idea that they can persuade their enemies not to hurt them. They believe that if they offer understanding and sympathy to the terrorists, then the terrorists won’t hurt them. They believe that if they display rabid aggression toward conservatives, then the conservatives won’t hurt them.

Both approaches demonstrate weakness. People who are in control of their own lives do not seek approval. Liberals in general, and paranoids in particular, are on a hopeless quest for their enemies’ approval. The enemies of liberals understand this weakness, and they take advantage of it.

Everyone who is not liberal understands how paranoid liberals are. Paranoid people can’t be reasoned with. They have no real capacity to cooperate. They sabotage others and they sabotage themselves.

The way to deal with them is to do what Rove has done: Provoke them. He’s not offering sympathy or understanding. He isn’t interested in their cooperation. He understands that they will never cooperate. So, he provokes them.

Provocation is not therapeutic for the liberals. But Rove isn’t in the business of offering therapy. Liberals are incapable of constructing and implementing solutions. They are spoilers. All they can do is criticize.

Liberals cannot participate in making things better; they can only make things worse. They have to be moved out of positions of influence. The most efficient way to do that is to expose them. The most efficient way to expose them is to provoke them. Score a big win for Rove.

I’ve said before that you can’t win an argument with a barking dog. A barking dog is not capable of reason. Paranoids are not capable of reason, either. They filter all information looking for the negative. They constantly search for the next conspiracy. They are obsessed by their own pathological prejudices.

The paranoid liberals interpret their feelings as reality. The more stress they feel, the more anxiety they feel. The more anxiety they feel, the more excited they become. The more excited they become, the less they are able to reason. In this sense, they are quite similar to barking dogs: A lot of noise, but nothing worth listening to.

Karl Rove knows better than to waste time arguing with barking dogs.

Guy L. Evans
Aurora, Colorado

Wednesday, June 22, 2005

The Truth About Guantanamo
Opinion © 2005, by Guy L. Evans

June 22, 2005

Happy Summer, everyone!

The Democrats and their anti-American allies have embarked on a campaign to smear the U. S. as a fascist country by issuing unfounded allegations of torture and prisoner abuse at the Guantanamo, Cuba facility. Hugh Hewitt links to this article and quotes Nancy Pelosi:

The treatment of detainees is a taint on our country’s reputation, especially in the Muslim world, and there are many questions that must be answered. These questions are important because the safety of our country depends on our reputation and how we are viewed, especially in the Muslim world.

There are many questions that have gone unanswered: What was the atmosphere created that permitted detainee abuse, and why was it tolerated? What was the training and supervision of the troops? Who had this responsibility? What is it that the Republicans are trying to hide? How far up the chain of command does this go? Why is the Secretary of Defense not taking responsibility? This happened on his watch.

Many of the detainees have been in U.S. custody since October 2001. Why have they been in custody for nearly four years without being charged? Why has so little been done to resolve the status of the detainees?
Hugh then responds with:

If Democrats want to taken seriously as other than a desperate group of out-of-power ideologues willing to trash everything and everyone in an attempt to get some traction with the public that has evaluated their collective fitness for leadership in time of war and ejected them from power, they will begin by defending our defenders, articulating the necessity of long term imprisonment for would be terrorists and the interrogation of those terrorists, drop the absurd and dangerous demand for “due process” for unlawful combatants, and help shoulder the burden of explaining to the world that America is the most humane of all jailers, and rigorous in its prosecution of its representatives who violate the rules of detention.
Neither Hugh Hewitt nor Nancy Pelosi offer any evidence to support their allegations of good or bad treatment of prisoners. Pelosi is rumor mongering and Hewitt is cheer-leading.

Neither Hugh Hewitt nor Nancy Pelosi knows with certainty what is happening at Guantanamo. Pelosi and the Democrats are trying to build a straw man and then attack him. Hewitt’s defense is equally flimsy. There is no reliable source of information available to the general public precisely because the efforts to extract information from the prisoners must be kept secret.

It makes sense to counter the propaganda of the Democratic Party, but propaganda is not effectively countered with other propaganda. I don’t know what’s happening at Guantanamo. Hugh Hewitt doesn’t know what’s happening at Guantanamo. Nancy Pelosi doesn’t know what’s happening at Guantanamo. Dick Durbin doesn’t know what’s happening at Guantanamo.

All allegations about the treatment of prisoners at Guantanamo, good or bad, are speculation. And they should remain so. The government is correct in keeping the intelligence activities at Guantanamo a secret from the American people.

The defense of our nation can be a horrifying business. Failure to defend our nation because the defense is too horrific to think about will result in even greater horrors. Our enemies do not want anything from us, and they do not want us to do anything for them. They want us to die.

Guy L. Evans
Aurora, Colorado

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