Category Archives: Founding Fathers

John Adams

Let all become attentive to the grounds and principles of government, ecclesiastical and civil.

Let us study the law of nature; search into the spirit of the British constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome; set before us the conduct of our own British ancestors, who have defended for us the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short, against the gates of earth and hell.

Let us read and recollect and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness.

Let us examine into the nature of that power, and the cruelty of that oppression, which drove them from their homes. Recollect their amazing fortitude, their bitter sufferings, — the hunger, the nakedness, the cold, which they patiently endured, — the severe labors of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money or materials for commerce. Recollect the civil and religious principles and hopes and expectations which constantly supported and carried them through all hardships with patience and resignation.

Let us recollect it was liberty, the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers, and trials. In such researches as these, let us all in our several departments cheerfully engage, — but especially the proper patrons and supporters of law, learning, and religion!

Let the pulpit resound with the doctrines and sentiments of religious liberty. Let us hear the danger of thralldom to our consciences from ignorance, extreme poverty, and dependence, in short, from civil and political slavery. Let us see delineated before us the true map of man. Let us hear the dignity of his nature, and the noble rank he holds among the works of God, — that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of God as it is derogatory from our own honor or interest or happiness, — and that God Almighty has promulgated from heaven, liberty, peace, and good-will to man!

Let the bar proclaim, “the laws, the rights, the generous plan of power” delivered down from remote antiquity, — inform the world of the mighty struggles and numberless sacrifices made by our ancestors in defense of freedom.

Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government; that many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries, even before a parliament existed. Let them search for the foundations of British laws and government in the frame of human nature, in the constitution of the intellectual and moral world.

–John Adams, “A Dissertation on the Canon and Feudal Law”, Boston Gazette, 1765

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The Least Understood Founding Father

Starting tonight, HBO will begin running what looks to be an amazing mini-series about one of America’s most misunderstood Founding Fathers:

When in the course of media events, a network devotes six Sunday nights, more than seven hours of airtime and $100 million to a miniseries, it’s likely that the show will be awash with sex and violence.

HBO, however, is about to depart radically from just that sort of thing and take a brave, glorious gamble. “John Adams” dramatizes the life of the second president, a Founding Father whose name is familiar but whose persona isn’t.

That is about to change.


“Adams” is the kind of classily intelligent production that can be happily recommended to everybody. The filmmakers, including executive producer Tom Hanks, have attempted to re-create and enliven history — and they succeed grandly.

Adams’ reputation has suffered over the years mostly because of some of the actions he took as President, most notably the Alien and Sedition Acts, and he was largely overshadowed by the man who succeeded him in office, but his role in the American Revolution was as crucial as Jefferson or Washington, if not more so and his commitment to liberty was second to none.

This miniseries looks to be well worth the attention of anyone interested in the men and ideas that gave birth to this nation.

The Founders And Earmarks

Earlier this week Senate Majority Leader Harry Reid made this rather absurd comment in the debate of earmarks:

“As we look back in history, the Founding Fathers would be cringing to hear people talking about eliminating earmarks,” Reid said, noting that the Founders dictated in the Constitution that all spending should originate in Congress, not the executive branch.

Senator Tom Coburn has this response today:

Although our Founding Fathers disagreed on many matters large and small, they were united in their skepticism of a secretive, backroom process to allocate taxpayer funding. George Washington noted in 1792 that no mischief is “so afflicting and fatal to every honest hope, as the corruption of the legislature.” Congressional approval ratings are now at record lows because taxpayers do not believe that we are being honest or open about how we spend their money.

Instead of offering dubious defenses of the propriety of earmarking, congressional leaders should seek to restore the confidence of the American public in their ability to govern by reacquainting themselves with the very document upon which our system is based. According to the Senate’s own website, the first bill ever passed by the United States Senate created a simple 14-word oath of office for all federal lawmakers and civil servants: “I do solemnly swear that I will support the Constitution of the United States.” Conspicuously absent from that oath is any mention of the so-called duty of members of Congress to send taxpayer-funded projects to their hometowns.

The revisionist history justifying today’s earmark favor factory is hardly the fault of the Senate Majority Leader or even his party. Sadly, this idea has currency in the party of limited government in which members should know that the effective legislator is not one who sends money back to his or her state through pork, but the one who prevents money from leaving their state in the first place.

Something tells me Coburn’s got the better argument on this one.

Ralph Nader: Jeffersonian ? I Don’t Think So

For reasons known only to him, Ralph Nader announced today that he’s running for President:

WASHINGTON (CNN) — Ralph Nader is entering the presidential race as an independent, he announced Sunday, saying it is time for a “Jeffersonian revolution.”

“In the last few years, big money and the closing down of Washington against citizen groups prevent us from trying to improve our country. And I want everybody to have the right and opportunity to improve their country,” he told reporters after an appearance announcing his candidacy on NBC’s “Meet the Press.”

Asked why he should be president, the longtime consumer advocate said, “Because I got things done.” He cited a 40-year record, which he said includes saving “millions of lives,” bringing about stricter protection for food and water and fighting corporate control over Washington.

This marks his fourth straight White House bid — fifth if his 1992 write-in campaign is included.

Nader said Thomas Jefferson believed that “when you lose your government, you’ve got to go into the electoral arena.”

“A Jeffersonian revolution is needed in this country,” he said.

I’m not which upsets me more. The fact that this old gasbag is running again or that he’s appropriating the name of a true American hero.

Superdelegates And The 17th Amendment

The Democratic Party is finding itself in a very strange position. They’re approaching a potential situation where neither of their candidates have enough elected delegates to secure the nomination, and the race will turn to the superdelegates to decide. Primary results can then be trumped by the say-so of the “party elites”. Thus, the party who complained that Al Gore “really won” the 2000 election due to the popular vote may nominate Hillary Clinton, who now looks unlikely to win the national Democrat popular vote or the elected delegate count.

The schadenfreude of watching the Democratic Party put into a position of acting undemocratically notwithstanding, this case is very interesting on its own merits. It has a parallel with our own Constitution and the 17th Amendment, and thus I find myself cheering on the “antidemocratic” forces within the party rather than those who would rely completely on the popular vote.

In the days of our Founding Fathers, “democracy” was a four-letter word. Democracy is mob rule, and unchecked democracy can lead down a very nasty road. America was never intended to be a democracy, it was intended to be a Republic strictly limited by the bounds of the Constitution, with democratic processes implemented to elect [some of] the leaders of that republic. Even so, our Founding Fathers chose against the direct election of Senators, because they wanted a counterbalance to the power of the democratically-elected House. Particularly, they are a check on the growth of central power, a way for the States to retain powers that 50%+1 of the members of the House of Representatives wanted to give to the central government.

The democratic party is designed in much the same way. Some delegates are elected popularly, and tasked with voting based on certain rules in accordance with what “the masses” want. On top of this are superdelegates, whose mandate is different: do what is best for the party. If the scenario plays out in the most interesting way, with Barack Obama leading in both the popular vote and the elected delegate count, there will be loud calls for the superdelegates to vote along the same lines as the popular vote.

The specific purpose of the superdelegates, however, is to be the brake on bad decisions of the popular vote if they believe it to be necessary. The superdelegates have a mandate, and if they believe that the popular vote is contrary to the goals of the party itself, they are obligated to follow their belief, not the popular vote. This is an unpopular position to take, of course, because we’ve been raised to believe that democracy is– in and of itself– a worthwhile end. Democracy, though, is a means and not an end. Democracy is only justified as a means if it reaches the “right” ends, and there is enough evidence throughout history to show that democracy often leads towards ugly, nasty results (slavery, segregation, and Jim Crow being a few clear examples).

All this doesn’t mean that I’m implying that the superdelegates, if the situation breaks such that Obama leads the popular vote and elected delegate count, shouldn’t vote for him. However, it is important that the superdelegates follow their conscience and do what they believe best for the party, not simply parrot the popular vote for its own sake. The superdelegates should view such things as the preferences revealed by the popular vote as only one aspect in their decision. Other crucial aspects to consider would be the questions of which candidate more closely lines up with core Democratic party policies and which is more likely to defeat the Republican in November. This calculation may cause their vote to line up with the leader of the popular vote and elected delegate count, or it may not. Either way, the superdelegates should not allow themselves to be railroaded into making a vote they don’t believe is the correct move for the party.

I pointed out quite a while ago that Libertarianism and Democracy are not mutually exclusive, but that it often lines up that way, as the incentives of government tend towards government power and away from individual liberty, and this is no different in a democratic form of government. Likewise, it must be pointed out that the Democratic Party has its own goals as an organization, and it is the obligation of members of the party to see that those goals are realized within the organizational rules they’ve enacted, even if it means that primary voters get overruled. Much as the original purpose of the Senate was to protect the interests and rights of States against those of the general populace, the superdelegates are tasked to protect the party from mistakes made by the Democratic primary voters. What that means for their nomination vote is up to their own conscience, and should not be subject to any constraints saying they must “follow the popular vote”.

Judge Andrew Napolitano Discusses the History of Civil Liberty Violations in America

Judge Andrew Napolitano gave a speech for Reason Magazine in Washington D.C. in October of last year on the history of Constitutional infidelity. Virtually every president from George Washington to George W. Bush has broken his oath of office to defend the Constitution. President John Adams, the nation’s second president, was the first president who tried (and succeeded for a time) in curtailing free speech rights with the Alien and Sedition Acts. These blatantly unconstitutional laws made it a crime for anyone to publicly criticize members of congress, the president, or his cabinet. Interestingly, there was no prohibition for criticizing the vice president, who happened to be Adams’ political rival – Thomas Jefferson. Jefferson was adamantly opposed to the acts and allowed them to expire whenever he became president.

Since John Adams, there have been many, many other Constitutional violations from all three branches of government which continue to this day. Much has been said in recent years about how President George W. Bush has trampled on the Constitution by passing such laws as the U.S.A. PATRIOT Act. Of the 43 presidents of the U.S., where does George W. Bush rank when it comes to violating the Constitution?

Napolitano answers:

George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln.

Worse than Woodrow Wilson, FDR, LBJ, or Richard Nixon? Now that’s a bold statement! Whether it’s Hillary Clinton, Barack Obama, John McCain, or Mike Huckabee as our next president, one thing seems to be certain: our civil liberties protected by our constitution will be further compromised. It’s really only a question of to what degree they will be compromised.

Quotes Of The Day: James Madison Edition

Words of wisdom from the Father Of The Constitution:

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

“It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

“No nation could preserve its freedom in the midst of continual warfare.”

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

“War should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits.”

“Each generation should be made to bear the burden of its own wars, instead of carrying them on, at the expense of other generations.”

H/T: Sully

The Best Explanation of the Second Amendment I Have Ever Heard

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”- Amendment II, U.S. Constitution

As Doug reported yesterday, the U.S. Supreme Court is going to take its first case on the Second Amendment in almost 70 years. During this period, legal scholars have debated whether the right to bear arms as described in the Second Amendment refers to an individual right or a collective right. For those of us who are certain that the right to bear arms is an individual right, it seems curious that of the ten amendments in the Bill of Rights that only this amendment was intended to be a collective right and a restriction on the individual’s rights rather than a restriction on the federal government.

Still I have found the construction of the Second Amendment to be problematic. Language evolves over time; this gives opponents of the Constitution an opening to make the words mean what they wish them to mean. What exactly did the framers mean by “militia” ? My understanding has always been that the framers preferred a citizen’s militia (not part of the government) to a permanent standing army as the first line of defense (the government would reinstate the army in times of war). If this was their intent, then it would make sense that the framers would want citizens to be armed to form militias in the event that the country came under attack from foreign threats or be ready in the event that the government became to oppressive.

My other problem with the construction of the Second Amendment is that I find the first part “A well regulated Militia, being necessary to the security of a free State” completely unnecessary. To me “the right of the people to keep and bear Arms, shall not be infringed” is short, sweet, and to the point. Individuals need to have the right to defend themselves, not only from the government but also from other individuals who threaten their lives, liberties, and property. A store owner should have every right to protect his store, his customers, his merchandise and himself from a hoodlum attempting to rob his store. A woman should have every right to carry a handgun to protect herself from the rapist hiding in the shadows. In both of these scenarios, the police (the government) are likely to not be of immediate assistance to these individuals.

Be that as it may, the Second Amendment says what it says and I still believe the authors of the amendment intended the right to bear arms as an individual right. Penn Jillette of Penn & Teller gave the best explanation of the meaning of the Second Amendment I have ever heard in an episode from their 3rd Season of their Showtime show Bullshit!

“A well regulated militia, being necessary to the security of a free state,” sure we need an organized military force to defend your country BUT “the right of the people to keep and bear arms shall not be infringed.”

This is the people in contrast with the militia. It doesn’t say “the right of the militia to keep and bear arms shall not be infringed” it says “the right of the people.”

Now why the word “people” ? Because the people who wrote this just fought a war for two years against a tyrannical state militia. They knew the time might come when they would have to do that again so they made the possession of weapons a right that the militia could never take away.

I have never heard this explanation before but it makes perfect sense. Penn goes on to say that the purpose of the Second Amendment was to make certain that the citizens could violently overthrow the government if the citizens found it necessary. It’s only natural that the government would try to disarm the citizen if it was under constant threat of an armed revolution. Moa, Lenin, and Stalin understood this perfectly well and said much the same thing.

230 Years Ago Today: America’s First Constitution Ratified

Two Hundred Thirty Years ago today, only one year after The Declaration of Independence was made public, and in the middle of a war that the American Colonies still had a chance to lose, the Continental Congress took the first step toward creating a national government, adopting the Articles of Confederation and Perpetual Union.

This first attempt at national government was quite different from what was adopted only ten years later. There was no President separate from the Continental Congress, no Supreme Court or Federal Court system, and gave the national government almost no power.

The Thirteen Articles provided as follows:

Article I — Establishes the name of the confederation as “The United States of America” and says it is a “perpetual Union.”

Article II — Asserts the precedence of the separate states over the confederation government, i.e. “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Article III — Establishes the United States as a league of states united “. . . for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them . . . .”

Article IV — Establishes freedom of movement–anyone can pass freely between states, excluding “paupers, vagabonds, and fugitives from justice.” All people are entitled to the rights established by the state into which he travels. If a crime is committed in one state and the perpetrator flees to another state, he will be extradited to and tried in the state in which the crime was committed.

Article V — Allocates one vote in the Congress of the Confederation (United States in Congress Assembled) to each state, which was entitled to a delegation of between two and seven members. Members of Congress were appointed by state legislatures; individuals could not serve more than three out of any six years.

Article VI — Only the central government is allowed to conduct foreign relations and to declare war. No states may have navies or standing armies, or engage in war, without permission of Congress (although the state militias are encouraged).

Article VII — When an army is raised for common defense, colonels and military ranks below colonel will be named by the state legislatures.

Article VIII — Expenditures by the United States will be paid by funds raised by state legislatures, and apportioned to the states based on the real property values of each.

Article IX — Defines the rights of the central government: to declare war, to set weights and measures (including coins), and for Congress to serve as a final court for disputes between states.

Ariticle X — Defines a Committee of the States to be a government when Congress is not in session.

Article XI — Requires nine states to approve the admission of a new state into the confederacy; pre-approves Canada, if it applies for membership.

Article XII — Reaffirms that the Confederation accepts war debt incurred by Congress before the Articles.

Article XIII — Declares that the Articles are perpetual, and can only be altered by approval of Congress with ratification by all the state legislatures.

In the end, the Articles proved ineffective in providing an effective national government for the new United States. Most importantly, a unitary legislature where each state had an equal vote proved to be the source of discontent between large and small states, each of whom felt they were not being equally and fairly represented in the national debate.

In addition, the Continental Congress soon proved to be a toothless tiger:

A product of haste, the Articles was meant as a stopgap, a short-term defensive alliance, and it took effect at almost the moment it became obsolete. The conditions of 1776 and 1777 had hardly been conducive to a systematic political ideology—and it showed. The central government lacked an executive and a judiciary. As Morgan wrote, “Congress had been safeguarded into impotency.” Unable to levy taxes, it depended on funds from the states, which increasingly ignored its pleas. States issued their own paper money without any specie to back it, negotiated their own foreign policy, raised their own navies, and taxed shipments from neighboring states. The new nation’s commerce and economy fell into chaos, and Britain declined to trade with American merchants. Congress was powerless to respond or even recommend a course of action; the states rarely sent enough delegates to reach a quorum. George Washington called the Confederation “a half-starved, limping Government that appears to be always moving upon crutches, and tottering at every step.”

And, less than a decade after they went into effect, they ceased to exist.

Is Dick Cheney Unconstitutional ?: The Case Against An Activist Vice-Presidency

In a provocatively titled law review article, Glenn Reynolds, who spends his time at the University of Tennessee College of Law when he isn’t blogging raises some very interesting questions about the Office of Vice-President and what it has become in modern times.

The article itself arises out of the controversy that erupted earlier this year when Vice-President Cheney’s office was refusing to comply with a request for documents from Congressman Henry Waxman and claimed that Cheney was, under the Constitution, not a part of the Executive Branch but rather a legislative official and thus not subject to Executive Branch disclosure laws. Cheney’s office later withdrew this argument, but as Reynolds argues, if Cheney’s inital argument is right, and even if it’s not, there are serious Constitutional and policy problems with the extent to which modern Vice-President’s have assumed powers once exclusively exercised by the President himself or his appointees.

As Reynolds notes, the idea that the Vice-President is a member of the Legislative Branch rather than the Executive Branch is not as insane as it sounds:

[T]he argument that the Vice President is a legislative official is not inherently absurd. The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate and to become President if the serving President dies or leaves office. Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws—and is not part of the President’s administration the way that other officials are. The Vice President can’t be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment.

That last item — the question of who can remove the Vice-President from office and how he can be removed — is important because it goes to the question of whether the delegation of Presidential powers to the Vice-President is Constitutional to begin with.

Back in 1986, the Supreme Court was asked to rule on the Constitutionality of the Gramm-Rudman-Hollings Act, one of the many 1980s era attempts to control deficit spending. Under Gramm-Rudman, the Comptroller General, the head of the Government Accountability Office, which is a part of the Legislative Branch, was given the authority to make across the board spending cuts in the event that Congress and the President were unable to agree on a budget that came within certain spending guidelines. The Supreme Court struck down the law, relying principally on the fact that the law granted Executive Branch authority to someone who is clearly under the control of Congress:

The critical factor lies in the provisions of the statute defining the Comptroller General’s office relating to removability. Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, and confirmed by the Senate, he is removable only at the initiative of Congress

Thus, the argument goes, just as it was unconstitutional for Gramm-Rudman to devise Executive Branch authority in an official who is solely under the control of Congress, granting Executive Branch authority to the Vice-President, who cannot be removed from office by any means other than impeachment, is similarly unconstitutional.

But, of course, the Supreme Court is unlikely to ever rule on this issue, as Reynolds points out. For one thing, it’s hard to conceive of a case that would be able to make it’s way through the Federal Courts without being tossed out for lack of standing. For another, the Court is likely to defer ruling on such a direct confrontation between the other two branches of government on the ground that it constitutes a “political question.”

That doesn’t mean that it’s a moot point, though, or that Vice-President Cheney’s unprecedented involvement in Executive Branch decision making should not be questioned. As Reynolds points out, it’s a pretty bad idea from a policy perspective:

[T]he Vice President is the only person nationally elected to serve if the President is unable to govern, and the Vice President’s involvement, a la Cheney, in day-to-day policy activities sacrifices the distance that earlier Vice Presidents possessed; those unhappy with President Bush’s Iraq policies, for example, can criticize Cheney in a way that critics of Carter’s Iran policies could not criticize Mondale. In the event that policies in which the Vice President is implicated go sufficiently awry to end a Presidency, the Vice President will not be able to appear as a fresh start and may be liable to impeachment or forced resignation as well. In such cases, this risks a move to someone not nationally elected—the Speaker of the House or the president pro tempore of the Senate—and very serious consequences for a nation that would be, in those circumstances, already divided and vulnerable.

Which is exactly what we don’t need. It’s time to bring back the days of the Do-Nothing Vice-President.

Do We Need A New Constitution?

Larry J. Sabato, a professor of politics at the University of Virginia, seems to think so, and he’s even written a book about it. However, some of his complaints indicate that he simply doesn’t understand that the document was designed for different purposes than he wishes it to be:

The Senate is horribly undemocratic. Because each state elects exactly two senators, thinly-peopled rural states wield disproportionate influence. If the 26 smallest ones stick together, they have a majority of votes despite representing only 17% of Americans. Mr Sabato wants to restore some fairness by giving extra senators to big states.

Actually, Larry, the Senate was designed for the system of federalism, where the goal was for States to keep Washington from running roughshod over their jurisdiction just because more populous states wanted something. Granted, the 17th Amendment and most of the New Deal and beyond have turned the States into little more than lines on a map, since everything now IS run from Washington. But the point of the Senate was not to be “democratic”, it was to offer a place where more cool-headed people beholden to State interests rather than directly to the public could temper the fluctuating flame of shifting public demands.

Not content with rejigging the building blocks of government, Mr Sabato also wants to lay constitutional obligations on individual citizens. All able-bodied young Americans should have to do two years of national service, he argues, either in the army or pursuing some other public good.

Ahh, I see, because his desire is to ensure that, beyond all the conditioning that our students receive in the [unconstitutional] public schooling they endure until age 18, the needs to brainwash them further into the “social contract” by imposing unnecessary obligations onto them. After all, if you start them young enough, you can teach them that freedom means only what Larry Sabato believes it means. If he really wanted to solve this one, he could do so quite easily be repealing the 13th Amendment. Not that I think Larry would get a lot of love if he put that on a bumper sticker, though!

But all this dances around the second problem. A few of Sabato’s suggestions were good, such as finding a way to reduce gerrymandering of districts, which turn House seats into fiefdoms. And his call is not for some halfway approach to the problem.

But Mr Sabato does not want us to pick one or two of his suggestions. He wants to call a second constitutional convention to rethink the entire document bar the Bill of Rights. The current approach of piecemeal amendments is not working, he says. Very few pass, and many that are proposed are foolish: think of the amendment to ban flag-burning. No, what America needs is a grand meeting of clever and high-minded people to draw up a new, improved constitution better suited to the 21st century.

A “grand meeting of clever and high-minded people”? I’m sure a lot of “politics professors” will be invited to such a thing.

I thought, a year or two ago, that perhaps the answer is another Constitutional Convention. I thought that we’ve misinterpreted the document so horribly that it might be time to spell out the limits on government that our Constitution enshrines explicitly, to take these decisions out of the hands of Supreme Court justices that constantly stretch the meaning of the document to fit ever-wider government. But there’s a problem with that approach. The type of people I would want to write the new Constitution probably wouldn’t be allowed in the room, and we’d end up with a document that enshrines “positive liberty” and obligations on individuals that make our current Leviathan seem like the Ritz Carlton.

We don’t need a new Constitution, and the call to create one is an invitation to velvet-gloved tyranny.

Is Ron Paul’s Foreign Policy Good For America ?

Last week, the Manchester Union-Leader, one of the leading newspapers in New Hampshire, and well-known for having a conservative editorial page, criticized Ron Paul’s foreign policy views as the same type of isolationism that gripped the Republican Party, and the nation, in the years prior to Pearl Harbor.

Today, Ron Paul responds in a column in which he says that he advocates the same foreign policy as the Founding Fathers, a foreign policy that would still work today

If I understand the editors’ concerns, I have not been accused of deviating from the Founders’ logic; if anything I have been accused of adhering to it too strictly. The question, therefore, before readers — and soon voters — is the same question I have asked for almost 20 years in Congress: by what superior wisdom have we now declared Jefferson, Washington, and Madison to be “unrealistic and dangerous”? Why do we insist on throwing away their most considered warnings?

Well, one legitimate reason for thinking that this might be that the foreign policy that guided a nation of a few million people situated on the Atlantic seaboard in an era when the nearest threatening nation was weeks away by sailing ship might not be entirely applicable in guiding a nation of several hundred million spread across a continent in an era when weapons capable of annihilating a city can be delivered within hours, or delivered without warning in a cargo container. Or when a commodity that is, quite literally, the lifeblood of the world economy could be held hostage.

I’m not saying that the Founding Fathers were wrong, just that even they might have a different view of the world if they lived in the one we did.

Paul goes on to describe what his vision of a non-interventionist foreign policy would be:

A non-interventionist foreign policy is not an isolationist foreign policy. It is quite the opposite. Under a Paul administration, the United States would trade freely with any nation that seeks to engage with us. American citizens would be encouraged to visit other countries and interact with other peoples rather than be told by their own government that certain countries are off limits to them.

American citizens would be allowed to spend their hard-earned money wherever they wish across the globe, not told that certain countries are under embargo and thus off limits. An American trade policy would encourage private American businesses to seek partners overseas and engage them in trade. The hostility toward American citizens overseas in the wake of our current foreign policy has actually made it difficult if not dangerous for Americans to travel abroad. Is this not an isolationist consequence from a policy of aggressive foreign interventionism?

On the surface, Paul makes a point about the blowback that comes from aggressive interventionism without regard for consequences. That, quite honestly, is a fairly good description of the history of American involvement in the Middle East for the past several decades. Whether through ignorance or stupidity, the United States has engaged in policies that have served more to create resentment than to actually solve the problems that they were directed at.

But Paul’s criticism of embargoes as a tool of foreign policy, and his suggestion that the United States should not have any concern about radical or expansionist regimes obtaining potentially dangerous technology strikes me as a bit naive.

As Stephen Green points out, does this mean that Ron Paul would have no problem with American high tech firms selling the latest technologies to regimes like Cuba, Venezuela, Iran, Syira, or North Korea ? Or with General Electric and Honeywell competing with the the Russians to decide who will sell the Iranians the latest nuclear reactor technology ? Only the most naive view of foreign intentions would assert that these regimes will simply go away and play nice if the United States withdrew from the world in the manner that he suggests, and that regimes led by men who have already made clear they apocalyptic visions will suddently turn peaceful.

Neville Chamberlin was wrong about that in 1938, and its still wrong today.

Or, as Stephen points out:

In 1940, The Imperial Japanese Navy was made from American scrap metal, and powered by American oil — as it shelled Chinese coastal cities. We should be proud that in 1941, we stopped selling oil and scrap iron to Japan. And we should be prouder still, that by 1945 the US Navy had reduced the Japanese fleet back into scrap. And we should be just as proud today that we’re using our strength and influence to prevent rogue regimes from gaining access to nuclear materials.

Why ? Because it’s in our national interest to prevent them from having those weapons and, unlike 1789, the national interests of the United States don’t stop at the Atlantic seaboard.

I like Ron Paul and I support him because he is the most pro-liberty candidate to run for President in a generation, if not longer. Whatever happens to his campaign, I would like to think that it will have positive benefits for the libertarian wing of the Republican Party, because it will remind people that we still exist and that we still matter. Like many libertarians, though, his foreign policy, when taken to it’s logical extreme to the extent he does in this Op-Ed response, simply doesn’t work in the modern world.

Only 44% Of Americans Believe The Supreme Court Should Follow The Constitution

The latest Rasmussen Poll asked Americans about their views on the Supreme Court and how it should interpret the Constitution, and the results aren’t all that encouraging:

As the Supreme Court begins a new term, 44% of Americans would counsel the justices to base their decisions “strictly upon what is written in the Constitution and legal precedents.” A Rasmussen Reports national telephone survey found that 38% say the Court’s decisions should be primarily guided by a sense of fairness and justice rather than strict constructionism.

Exactly what “fairness” and “justice” are and who defines them are, of course, left unstated. Which is precisely what’s wrong with a jurisprudence that pretends it can ignore the text of the Constitution and impose whatever values a particular Justice might see fit when interpreting what is supposed to be the governing document of the United States.

H/T: QandO

Happy Constitution Day

It was 220 years ago today that the Constitution was signed by it’s drafters in Philadelphia:

What’s the most important day in American history? Most of us would answer the Fourth of July. But think about today, Sept. 17.

For on this date in 1787, the convention in Philadelphia completed work on one of the greatest acts of creative leadership of all time, “this Constitution of The United States.” The framers rescued America from what James Madison later described as “so gloomy a chaos” and set the world marching toward what we can now see as the Age of Democracy.

Yet there will be no parades today, no picnics or fireworks. Perhaps a library somewhere is sponsoring a talk, but Constitution Day will pass largely unnoticed. Americans have, over the past 40 years, drifted away from a connection to our Constitution, the document that invented the United States as we now understand it and helped it to become the longest enduring democracy in history.

Sadly, this is largely true, but I don’t think a parade is necessary. All you really need to do is read the document itself, and ponder what has become of it.

Why Ron Paul Faces An Uphill Battle

It’s hard to win with a campaign based on liberty, when so many Americans don’t seem to really believe in it:

WASHINGTON — Sixty-five percent of Americans believe that the nation’s founders intended the U.S. to be a Christian nation and 55% believe that the Constitution establishes a Christian nation, according to the “State of the First Amendment 2007” national survey released today by the First Amendment Center.

The survey also found that 71% of Americans would limit the amount a corporation or union could contribute to a political campaign, with 64% favoring such a limit on individual contributions. Sixty-two percent would limit the amount a person could contribute to his or her own campaign. Support for such limits increased from the 2000 survey in all three areas: by nine percentage points in favor of limits on self-funding, by seven points concerning limits on individual contributions to someone else; and by three points on limits on corporations and unions.

The First Amendment Center has conducted the annual survey since 1997. This year’s survey, being released to mark both annual Constitution Day (Sept. 17) activities and the sixth anniversary of the 9/11 terrorist attacks, also found:

  • Just 56% believe that the freedom to worship as one chooses extends to all religious groups, regardless of how extreme — down 16 points from 72% in 2000.
  • 58% of Americans would prevent protests during a funeral procession, even on public streets and sidewalks; and 74% would prevent public school students from wearing a T-shirt with a slogan that might offend others.
  • 34% (lowest since the survey first was done in 1997) think the press “has too much freedom,” but 60% of Americans disagree with the statement that the press tries to report the news without bias, and 62% believe the making up of stories is a widespread problem in the news media — down only slightly from 2006.
  • 25% said “the First Amendment goes too far in the rights it guarantees,” well below the 49% recorded in the 2002 survey that followed the 9/11 terrorist attacks in 2001, but up from 18% in 2006.

Depressing, just utterly, utterly depressing.

H/T: Irish Trojan In Tennessee

Individual Rights And The Right To Save Your Life

Earlier this week I wrote about a particularly outrageous decision by the U.S. Court of Appeals for the District of Columbia which essentially held that terminally ill patients do not have the right to use drugs for purposes not approved by the Federal Drug Administration.

Today, the Cato Institute’s Roger Pilon, writing in the Wall Street Journal, demonstrates just how tragically and unjustifiabily wrong the Court of Appeals was:

The wheels of justice turn slowly, especially for the dying. On Tuesday the D.C. Circuit, sitting en banc, reversed a 15-month-old decision by a panel of the court that had recognized a constitutional right of terminally ill patients to access potentially life-saving drugs not yet finally approved by the Food and Drug Administration. Given the poor quality of Tuesday’s opinion in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach — “startling,” said the dissent — one wonders why it took so long. The opinion’s one virtue is that it brings out clearly how far modern “constitutional law” has strayed from the Constitution, a document written to protect liberty, not federal regulatory schemes.

Represented by the Washington Legal Foundation, Abigail Alliance is named for Abigail Burroughs, a 21-year-old college student who died of cancer in 2001. Their argument could not be more simple or straightforward, nor could Tuesday’s dissent, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, the majority in the earlier opinion. Citing the Fifth Amendment’s right to life, the Ninth Amendment’s assurance to the Constitution’s ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court’s “fundamental rights” jurisprudence, Judge Rogers argued that the right to life, the right to self-preservation, and the right against interference with those rights — which the FDA is guilty of — are of one piece. They are deeply rooted in common law and the nation’s history and traditions, implicit in the concept of ordered liberty, and thus “fundamental.”

Indeed, it is startling, she noted, that the rights “to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body have all been deemed fundamental, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.” Because the rights at issue here are “fundamental,” she concluded, the court must apply, in judicial parlance, “strict scrutiny.” The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.

This would seem to be especially true in cases such as this, where we’re dealing with people who, left only with the skills of contemporary medicine, are likely to die anyway. In such a situation, what justification is there for telling someone who is about to die that they can’t try an experimental therapy just because it hasn’t been approved by some bureaucrat in Washington ?

As Pilon notes, though, this case is about much more than whether the rights of the terminally ill. It has do to with just how screwed up Constitutional jurisprudence has become:

[T]he issues here go well beyond this case, which is doubtless why the court decided to rehear it en banc. And they go beyond liberal and conservative as well, as the mixed seven who joined Judge Griffith’s opinion should indicate. What we have here, arguably, is a revolt of sorts by Judge Rogers and Chief Judge Ginsburg against what passes today for “constitutional law.” Reducing that revolt to a simple question: Under a Constitution that expressly protects the right to life, how did we get to where government can effectively restrict the right, and the courts will do nothing ?

As Pilon notes, for liberals, the answer to that question is rather simple. Rather than worrying about fundamental rights and the intent of the Framers, they worry about sociology and economics; issues that ought to concern legislators rather than Justices

For conservatives, though, it involved a rejection of the Founders themselves:

[I]n Robert Bork’s The Tempting of America, where conservatives often turn, we find an answer. Describing what he calls the “Madisonian dilemma,” Judge Bork writes that America’s “first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second principle is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.” (emphasis added)

That turns Madison on his head. James Madison stood for limited government, not wide-ranging democracy. His first principle was that in wide areas individuals are entitled to be free simply because they are born free. His second principle was that in some areas majorities are entitled to rule because we have authorized them to. That gets the order right: individual liberty first, self-government second, as a means for securing liberty.

Yet we repeatedly see conservative jurists, as here, ignoring the true Madison — deferring to the legislature when their duty, as Madison put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” A perfect example is Justice Antonin Scalia’s dissent in a 2000 case, Troxel v. Granville, which found that Washington State’s grandparent visitation act violated the right of fit parents to control access to their children. Dissenting, Justice Scalia argued that although the parental right is among the unalienable rights proclaimed by the Declaration of Independence and the unenumerated rights retained pursuant to the Ninth Amendment, that amendment does not authorize “judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” Thus, just as the Abigail Alliance majority did, he would defer to the legislature to tell us what those rights are — the very legislature that had extinguished the parental right that he had just located in the Ninth Amendment.

And that, in a nutshell, is what Robert Bork meant when he infamously referred to the Ninth Amendment as a “ink blot.” And it’s also why libertarians who think they can trust conservative judges are kidding themselves.

One Man’s Freedom of Expression is Another Man’s Hate Crime

We seem to have strayed a long way from our valuing of free speech, perhaps best stated by Voltaire “I disapprove of what you say, but I will defend to the death your right to say it.” In this age of political correctness, both the Right and the Left has bastardized the idea of free speech to a more politically correct attitude: “I disapprove of what you say, but I will defend your right to say it until someone else is offended.”

As I was driving in to work, I caught a couple of segments of The Mike Gallagher Show (a show I do not normally listen to). Gallagher brought up a case which happened at Pace University where a 23 year-old man by the name of Stanislav Shmulevich allegedly threw a Quran in a toilet on two separate occasions. The university originally reported the crime as an act of vandalism but later decided to report the act to the NYPD as a hate crime instead. I assumed that Gallagher would go on to criticize this as political correctness run amok but to my astonishment, he said that treating this act as a “hate crime” was completely appropriate. Gallagher went even further to say that certain acts such as desecrating a “holy book” (regardless of the faith), the American flag, or burning crosses should all be exempt from First Amendment protection. In his view, there are just some things which should be held sacred; those who commit “crimes” against what he or others consider “sacred” should be punished criminally.

Gallagher’s arguments got even weaker from there. Several callers challenged him on this notion and Gallagher would ask questions like (paraphrasing) “Should we consider it free speech when someone paints swastikas on a Jewish person’s home?” and “What about burning a cross in the lawn of an African American, is that free speech?” Perhaps his most absurd example was whether or not a person dressed in Nazi uniform goose stepping in a Jewish neighborhood should be protected by the First Amendment.

All of these questions can be easily answered if only we go back to the basic idea that each individual has the natural rights of life, liberty, and property (“your freedom ends where my nose begins”); nowhere in our Constitution is there a right to not be offended. Painting swastikas on a Jewish person’s home or burning a cross in an African American’s yard are both violations of these individuals’ right to property, and therefore, the perpetrator should be prosecuted on those grounds.

So, what about the racist bastard goose stepping in a Jewish neighborhood? Assuming the idiot does so on public property, s/he is protected by the First Amendment. Being an anti-Semitic moron, while infuriating to most sensible people, is not a crime nor should it be.

One could argue that these above acts would be acts of intimidation and could warrant criminal prosecution (certainly in the first two examples would be prosecutable without “hate crimes” laws, the last example would still be a bit of a stretch) but I fail to see how desecrating a book which some people deem as “holy” even rises to this standard. There’s no question that desecrating a holy book is offensive to a great majority of people, but a crime? Thomas Jefferson found fault with much of the Bible and therefore proceeded to physically cut and paste the portions of the Bible that he found to be authentic to create his own interpretation of the Bible and discarded the rest. References to the virgin birth, the resurrection, angels, and other miracles were all omitted from the Jefferson Bible. Clearly, if someone like Gallagher knew of someone doing something like this today, he would regard this person as a hate criminal.

The whole purpose of the First Amendment is to protect speech that can be and often is offensive to the sensibilities of a person, a group, or even a majority. Popular speech does not need to be protected nearly as much. I might not like it if someone chooses to burn an American flag, desecrate a copy of Ayn Rand’s The Virtue of Selfishness, or wishes to write terrible things about me on a post I have written but unless such an individual does these things without threatening my life, liberty, or property, I have to put up with these things. It’s the price I pay for living in a free society and a price I am quite willing to pay.

Cross posted here at Fearless Philosophy for Free Minds

Related Posts:
The First Amendment Explained: Establishment and Free Exercise Clauses (Part 1 of 2)
The First Amendment Explained: Free Speech (Part 2 of 2)

Why Ron Paul Cannot Be President

John Derbyshire who is, admittedly, a conservative, has a mostly positive piece about the Paul phenomenon at National Review Online where he tries to figure out why more conservatives aren’t supporting Ron Paul. In the process, he comes up with the reason that Ron Paul cannot be President:

If Washington, D.C. were the drowsy southern town that Warren Harding and Calvin Coolidge rode into, Ron Paul would have a chance. Washington’s not like that nowadays, though. It is a vast megalopolis, every nook and cranny stuffed with lobbyists, lawyers, and a hundred thousand species of tax-eater. The sleepy old boulevards of the 1920s are now shadowed between great glittering ziggurats of glass and marble, where millions of administrative assistants to the Department of Administrative Assistance toil away at sending memos to each other.

Few of these laborers in the vineyards of government do anything useful. (In my experience — I used to have to deal with them — few do anything much at all.) Some of what they do is actually harmful to the nation. On the whole, though, we have settled in with this system. We are used to it. It’s not going away, absent a revolution; and conservatives are — duh! — not, by temperament, revolutionaries.

Imagine, for example, President Ron II trying to push his bill to abolish the IRS through Congress. Congress! — whose members eat, drink, breathe and live for the wrinkles they can add to the tax code on behalf of their favored interest groups! Or imagine him trying to kick the U.N. parasites out of our country. Think of the howls of outrage on behalf of suffering humanity from all the lefty academics, MSM bleeding hearts, love-the-world flower children, Eleanor Roosevelt worshippers, and bureaucratic globalizers!

Ain’t gonna happen. It was, after all, a conservative who said that politics is the art of the possible. Ron Paul is not possible. His candidacy belongs to the realm of dreams, not practical politics. But, oh, what sweet dreams!

Unfortunately, I think that Derbyshire’s analysis of what American politics and government have become is spot on. If Thomas Jefferson were to suddenly appear in the middle of K Street today, does anyone really think that he’d be pleased with how things have turned out, or that he’d be greeted by the political classes once he starts talking about pesky little things like freedom ?

No, I don’t either.

And, that, in the end, is why I don’t think Ron Paul has a chance. It’s not because there’s anything wrong with him. It’s because there is too much wrong with the system.

Dinesh The Gun Totin’ Libertarian Is At It Again

Dinesh D’Souza has a post up responding to his earlier post claiming that Ron Paul isn’t really a libertarian because he doesn’t want to conquer the world.

This time, he tries to explain away the fact that the Founding Fathers were non-interventionist:

In response to my argument, some Ron Paul supporters have noted that the American founders warned against foreign entanglements and that they generally kept American troops within the nation’s borders. So how can the ideological universalism of the founders be reconciled with their practical caution? Easy: the founders realized that America at the time had very big ideals but very little power. America in the late eighteenth century was what we would today call a “developing nation.” It was simply not in a position to promote freedom abroad. The founders had their hands full in trying to secure it at home.

This has got to be the most extreme example of historical revisionism I’ve seen in some time. D’Souza is effectively arguing that, notwithstanding clear examples to the contrary, the Founders would have been all for invading Europe and liberating the masses, if only they had the guns and the power to do it. Of course, D’Souza cites no evidence in favor of this argument and, while he is correct that protecting the young and relatively weak new Republic was a primary concern of Presidents such as Washington, Adams, Jefferson, and Madison, his argument ignores the fact that they also spoke out against intervention because they knew the impact it would have on American liberty. And they were right.

D’Souza goes on to parrot the traditional neoconservative creed:

Today America is the world’s sole superpower, and that means that our ideals are backed up with wealth and power. True, we should use that power prudently, but we should not imagine ourselves constrained in the same way that the founders were. Might, it is sometimes said, does not make right. But neither does right by itself make might. Might is sometimes necessary to ensure that right prevails in the world.

Even if that means making the rest of the world accept our definition of what’s right at the point of a gun, right Dinesh ?

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