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Category Archives: Theory and Ideas

Keep Your Powder Dry

December 7, 2005 Eric Theory and Ideas

Over the years, I’ve had many dialogues with people about inherent rights and constructed rights, and why they are different. I’ve also tried to distinguish between capitalism and corporatism, and why the are different. The issue that continues to crop up is that most people, even though they have taken classes on politics in high school, and even college, appear not to have been exposed to the Enlightenment philosophies that our political system is founded, nor the Age of Reason thinking that preceded them, or the Rationalist that followed. Unfortunately, without understanding those philosophies, it is impossible to understand why the Constitution and government of the United States are constructed as they are. In the next few paragraphs I will attempt to lay out the basis for the idea of inherent rights, and how they differ from constructed rights.

Inherent rights are also known, in the Rational tradition, as negative rights, also expressed as “freedom from … “. Constructed rights are known as positive rights, also expressed as “freedom for … “. To understand why this is important, you have to start with the foundation of classic liberal philosophy, that political power originates with the individual, not with society, or anything else external to the individual. The individual also has inherent rights that exist prior to society, or outside of society. And these rights exist regardless of society. Put another way, one does not require a society for these rights to exist. And that is why we call them inherent. Two are easy to understand, life and liberty. Obviously, whether society exists, or not, you, the individual have life, which confers on you the right to live and defend your life. Liberty is also clear and logically obvious. Without society you are, in fact, free to do as you choose. Thus, you have a right to your liberty, although you may agree to some limitation on that right in order to gain other things of value to you. Property though, that is harder to argue. And it is often the point where folks get hung up. Most left wing political philosophies do not agree that individuals have the right to property, or take the position that their right to property is very limited, stems from society or the state and is essentially a state of renting the property, rather than having a right to it.

Here’s how we establish what inherent rights exist. Let’s suppose I live alone on this deserted island. And suppose that, during my time alone, I build a house, plant crops, cultivate a front yard, etc. Now, suppose that you show up on the island and decide that you should be able to live in the house that I built. Should you be able to whether I want you to, or not? Or, have I, in fact, by improving the land and constructing a dwelling established it as my property? And, if you try to move in without my say so, will I defend the house and land that I have improved and cultivated? Should I be able to, or do you have some right to that land regardless of my situation?

The basis of modern property law is to protect this “natural”, pre-society ownership and to leave you and I free to do more than simply defend our property from those who would take advantage of our work to improve our land. In fact, American law encapsulated this very idea with the Homestead Act. The Homestead Act was one of the few times a government actually explicitly captured the idea of this right within a law. The reason that it did happen is that the United States is one of the only countries ever founded upon classic liberal philosophy. Since most governments in history have existed based on the belief that political power originates with an elite of some sort, this isn’t really unusual. The reality, if you explore the idea logically, is that governments were either established to continue an elite in power (the successful conqueror theory of government) or to protect a group of people from the successful conqueror. This is fairly logical, if you stop and think about why and how humans would have banded together in groups, created rules (laws) of behavior and set up certain people to make decisions. In fact, even in the successful conqueror group it seems logically obvious that, by and large, the followers of the original leader would have chosen to follow him (perhaps not all, but many) because he would provide them with better protection of their own right to life, liberty and property, even if that would mean infringing on the rights of others who were outside the group.

Going back to our argument that inherent rights exist in a natural state, or prior to society, it becomes clear that in a natural state constructed rights don’t exist. You don’t have an inherent right to healthcare. Healthcare doesn’t exist without society. If you live on a deserted island, all by yourself, there is no healthcare, nor can you establish it, as you could establish ownership of your property. Healthcare is a “right”, constructed by society. Normally we call things like this privileges, except in our new political philosophy, the so-called neo-liberalism (that’s what democratic socialism in the USA was called in the 1930’s by the way), privileges are now considered rights. It’s as if we have removed the idea that some things exist with or without society and some things can only exist with a structured society. We, in this country, have lived in a state where our inherent rights are not threatened by the infringing activity of a conqueror for so long that we have forgotten that such a thing can be. And now we decide that privileges are rights. Yet, if this comes to pass, we will soon remember the truth of the proposition. Most of us who have grown fat, dumb and lazy will learn the lesson the hard way that constructed rights are privileges of a rich society and inherent rights must be defended by force to be kept. The law of the jungle rules mankind, there is no getting around it. We have constructed, for a short time, in this limited place, a society where the jungle rules are kept at bay, but this will not last. And when it ends, whether tomorrow or a century, or 5 centuries (but end it will, never doubt that) you had better keep your friends close, your enemies closer and your powder dry.

Eric

Security executive, work for Core Security, veteran, kids, dogs, cat, chickens, mortgage, bills. I like #liberty #InfoSec #scotch, #wine, #cigars, #travel, #baseball

http://www.securitycigarsfud.com/

A citizen, or a Subject?

December 7, 2005 Chris Byrne Constitution, Individual Rights, Theory and Ideas

What is the difference between a citizen, and a subject?

Very simple. A citizen has rights, a subject has priviliges.

Some believe that one can be free in a monarchy, if the laws are structured properly. That in fact, their societies can be more free than more democratic ones, because the head of state can overrule any law that would violate the freedoms of the peope.

Others believe that since no government, no matter how it is structured, can be depended upon to not vote itself more power, more money, and more control; that anarchy is the solution, and in fact only under anarchy can people be free.

I have to make clear, both of these thoughts are entirely mistaken.

There is no monarchy, even a constitutional monarchy, where the people are truly free. It comes down to the difference between a citizen, and a subject.

There is no way that anarchy can exist without the weak becoming subject to the strong.

It is as citizens, participating in a free state, where we are subject to none but ourselves, but where we are citizens bound by justifiable laws, that we are most free as a people.

As individuals we may be more free under anarchy for a time, but as a people, the strong will dominate the weak, and our society as a whole will suffer for it, as will each individual member within it eventually; But that’s a second order effect that anarchists dont tend to see. They don’t follow their argument to its eventual end.

It all comes down to the difference between a citizen, and a subject.

Even though our government has overreached greatly, and grown into the monster it is today, we are still at core free men, different from almost all others in this world.

Taking as an examle Britain; as a subject of the queen, technically speaking you don’t have any rights, you have whatever priviliges the queen allows you.

Though the royals haven’t ruled that way since the early 19th century, and their absolute control was curtailed by the manga carta, and again after the failed republic (and the somewhat disastrous but thankfully short Stewart restoration) the freedoms of the British peoples are entirely a matter of tradition, not of law.

Britain is often referred to as a constitutional monarchy, but this isn’t actually true. There is no written guarantee of either the limitation or structure of government, nor of the rights of the people.

Britain is governed according to the principle of common law, where tradition and precedent are the primary means of enforcing structure and shaping legislation; but that’s all there is. The only real limitations as to what parliamant can or cannot do are tradition, prior acts of parliament (which can always be changed or repealed), or the will of the crown.

Americas governmental structure is radically different. In America we have a constituiton which defines the form, and structure of our government, and very stricly limits how that government can restrict our liberty as free men. The constitution iteslf makes explicitly clear that the governments powers are limited, and that power rests in the people.

We are not subject to anything, or anyone but ourselves, as free sovreign men.

As free men, we have no obligation to comply with laws, or regulations that are unconstitutional.

Sure, there are situations where folks disagree(or pretend to disagree) about what the constitution says, or how it says it, or what it means. Here’s the thing: Nuance and subtelty are not in the language of the constitution.

Let me say this again, there is no nuance in the language of constitution. If you think there is read the federalist papers for reinforcement. The constitution was written quite painly. There is without a doubt both subtle and profound genius in the concepts of the constituiton, but it’s only because it is written in 18th century high cant that anyone can legitmately see any ambiguity. Again read up, you’ll figure it out.

Of course lots of folks pretend, or convince themselves there’s real ambiguity, but they are either mistaken or they are lying.

Oh and the spot in the constitution that says we shouldn’t follow any laws that are not explicitly authorized by the constitution?

Well you can’t get more explicit than the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Not surprisingly, that ones not too popular among legislators, liberals, or far right conservatives, because it very clearly states they arent allowed to make any law they want to.

The government cannot under any circumstances make law that is unconstitutional. If they do so that law is not legal, valid, or binding.

In most countries, you are only alllowed to do what the government lets you. Almost all countries in the world other than the U.S. are like this (even Australia, the second freest country in the world).

In America we can do anything we like, so long as it is not specifically limited by the government, and the government can only restrict us in ways that are in the constitution. Thats a pretty radical concept, and when it was first instituted, it had never been tried before. In fact everyone predicted it would fail quite spectacularly. Instead, some 230 years later (I’m from Boston, we remember the revolution started on April 19th 1775, not july 4th 1776), we have the most stable and long lasting government since the roman empire.

Of course the government has taken upon itself to intrude, and to regulate far more than the constitution explicitly allows, both for good and for ill.

The vast majority of federal law and regulations flow from a few basic statements in the constitution, which I’ll paraphrase here: The federal government has the authority to promote the general welfare, secure the peace, negotiate with foreign powers, make war, ensure the full faith and credit of articles (licenses, marriages etc…) between the states, to resolve disputes between the states, and to promote and regulate interstate commerce.

The problem lies with that last one, promoting and regulating interstate commerce. It’s a pretty vague clause, ad it can (and has) be stretched to encompass almost anything. This isn’t really in the constitution as such, but if a judge allows it…

As our government was concieved, the states were for most purposes their own independant entities. The states had all the power to tax, and control of all laws and jurisdictions within their states, except in matters that would conflict with other states, or with the consitution. The federal government had EXTREMELY limited power and authority.

Even up until the early 20th century, the average citizen in America would have no contact or interaction with the federal governement in any way their entire lives, except perhaps through the military, or during wartime.

Then, as a result of the growing tensions between the states, and several wars, there were a series of rulings by the supreme court in the 19th and through the early 20th centuries that were very questionable as to their constitutionality, but very clear in their intent to grant the federal governement ever increasing authority and control.

During and just after the civil war the president and the out of control congress did many things that were blatantly unconstitutional. They also packed the supreme court with justices that would allow them to do so, or simply igonored, or didn’t allow to go to court, issues they didnt like. After restoration things calmed down significantly (though not back to where they were before).

It wasnt until World War 1 that the federal government layed any sort of regular permanent tax on citizens. In fact their authority to lay this tax was successfully challenged (several times), and they had to pass a constitutional amendment to get the right to re-instutute it.

The last straw as it were for our original intended system of federal government was Franklin Roosevelt, who used the circumstances of the great depression to multiply the size, and power of the government by quite literally a factor of 10. Before 1934 most people never heard or saw the feds in their entire lives, afterwards, the feds became the dominant force of government eventually relegating the states to near irrelevance.

This continued apace through the second world war, then Korea, and into the 60’s; until by the time Lyndon Johnson was done, the federal government was over 20 times the size it had been before 1934, for a less than doubled population. In this time frame the number of federal laws and regulations expanded to over 1000 times it’s original size.

Almost all of these things were in fact unconstitutional, but they were done while the country was reeling through 40 years of continuous crises; from the great depression through the cold war. Anyone who challenged the government during this time was totally marginalized as a cook, or their point was acknowledged and ignored because “these things have to be done for < -- insert crisis of the day here -->“.

By the time anyone thought to mount serious challenges, there was a huge bulwark of time and precedent surrounding the changes, and we’ve been trying to chip it down ever since. Anyone who has protested too vigourously has been declared crazy, made illegal, harrased, or even been killed (Randy Weaver was a racist POS, but he was deiberately targetd for being anti-government, and what they did to his family is wrong in every way).

Meanwhile the sheep continue to munch away; but even with all this intrustion, we are still free men, subject to none but ourselves.

A very graphic, and simple illustration of the structural differences between America and Great Britain, and what that means, to be free, and not be a subject:

In America all elected officials, and all military officers and enlisted men swear an oath to preserve, protect, and defend the constitution of the United States. They do not swear to the president, or even to the constitution. They swear, to THEMSELVES, and to their fellow men, that they will uphold the code that is the constitution.

In Great Britain elected officials and military officers serve at the pleasure of her majesty, and officers commisions are granted by her majesty. Each man swears his oath to the sovreign, who he is subject to. He is not a free man, but a subject.

All prison sentences and court decisions are at her majesties pleasure as well. The final recourse of justice is in all cases a petition of right, which supercedes all courts, where one directly appeals to her majesty for a decision, and that decision has the force of law.

So heres where we stand. The British, most liberals, anarchists, and some conservatives seem to have a fundamental misunderstanding, and make some improper assumptions about American government.

The Britsh are subjects. They have been raised as subjects, and do not percieve how any government can be any other way. They are bewildered by our talk of unconstitutional law, and limitation of government, or of the thought of disobeying the law not being wrong, or not being a crime.

So are many liberals. They have the mentality of subjects.

Anarchists belive that one cannot have any government without being a subject.

We are not subjects, we are citizens. We do not have prviliges granted us by the government, we have rights inherent to our nature as men.

A subject is required to obey all laws propagated by those he is subject to. A citizen is able, and perhaps morally required to disobey, and in fact to actively resist all laws that infringe against his fundamental rights.

A subject is raised to believe that government is ultimately in power. A citizen knows that it is himself, and his fellow men who are in power, and he is answerable to none but his own soul.

Liberals want us all to be subjects. I wish to remain a citizen, and I will die before I am made a subject.

From the declaration of independance:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

–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, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

…

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Chris Byrne

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

http://anarchangel.blogspot.com

Why We Are Not Conservatives

December 6, 2005 Doug Mataconis General, Individual Rights, Theory and Ideas

Libertarians are often lumped into the same camp as conservatives and it usually takes alot of explaining to the uninitiated before they completely understand the differences. I was reminded of those differences this morning when I read this piece on Hit & Run that contained the following quote from Robert Bork:

“Liberty in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality,” writes the former appeals court judge, now a resident scholar at the American Enterprise Institute. “Censorship as an enhancement of our liberty may seem paradoxical. Yet it should be obvious, to all but the most dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free.” Bork goes on to complain that “relations between the sexes are debased by pornography”; that “large parts of television are unwatchable”; that “motion pictures rely upon sex, gore, and pyrotechnics for the edification of the target audience of 14-year-olds”; and that “popular music hardly deserves the name of music.” I guess he’s not a fan of online porn websites like m porn xxx then!

Bork’s logic is strangely Orwellian. By restraining you, we will make you more free. Of course, by free we mean free to make only the choices that we approve of. This is the difference between conservatives and libertarians. Libertarians are content to let people live their lives as they see fit, to watch the television shows they want to watch and listen to the music they enjoy, without getting the state involved. Conservatives, bound as they are by the chains of tradition, talk as though they believe in freedom, but it is the freedom to only make a limited set of choices.

I remember back in 1986 I was upset that Bork was not confirmed to sit on the Supreme Court. After reading quotes like the one above, I am glad that he wasn’t.

Doug Mataconis

http://www.belowthebeltway.com

Is Tolerance the same as Acceptance?

December 5, 2005 Kay General, Individual Rights, Theory and Ideas

How many times have you heard it said that we must be tolerant of someone, thing, idea, etc. with the implication being that you must accept it? The words “tolerance” and “acceptance” are used interchangeably these days, but do they really mean the same thing?

The definition for the word “acceptance” has changed little in the last 180+ years, still meaning:
A receiving with approbation or satisfaction; favorable reception; as work done to acceptance.

Looking up the word “tolerance” in the old Webster’s 1828 dictionary, we find this definition:
The power or capacity of enduring; or the act of enduring.

The more current definition I find in the new Webster’s dictionary (circa 2003) is: open-mindedness; forbearance

So, you may say – it’s just semantics – means the same thing. But does it really? Is open-mindedness really the same as “enduring”?

I personally find in the day to day world many things about which I am not and would not be accepting of – however, realizing that not everyone has had the same experiences to shape them as have I, I am tolerant of things in others that I would not accept of myself. So from that standpoint, I absolutely do not believe that acceptance and tolerance are the same thing. I tend to go more along with the older word definitions, because, frankly, I think our language has been bastardized and weakened considerably by poor education, political correctness, and just general laziness.

Words are important – and weighty. Our forefathers understood the importance of weighing their words carefully – and expressing themselves in a very articulate manner. They used a tremendous volume of words at times to express what seem relatively simple concepts, but they did so because it was important to them that every “i” be dotted and every “t” crossed. They knew that the smallest matter not spelled out in our Constitution would lead to difficulties down the road when it came time for their descendants to interpret what they’d written. They did a remarkable job, but it was inevitable with time that word meanings should devolve and their writings lose some of the very preciseness they initially held.

I love words. I’ve loved words for as long as I can remember – I guess from the days as a child when I’d ask my dad for the meaning of something and he’d point me to the dictionary. I have been known on a number of occasions to actually sit and read through the dictionary, or flip through its covers looking for new words to commit to memory. It is for that reason that I become disturbed when I feel that word meanings have become corrupted.

I’m afraid at times that I may come across as a moralizer – it’s really not my intention – but I think of myself more as a moral philosopher or ethicist.

But I have digressed greatly. Back to the original question. Social liberalism would lead one to believe that tolerance and acceptance are the same, that I must accept the religions and beliefs of others. Once again, acceptance means to receive with satisfaction or give a favorable reception. Tolerance, however, means that while I must *endure* (put up with) the beliefs of others, I do not have to give them a favorable reception – I simply have to let them BE.

Tolerance and acceptance also go hand in hand with that 4 syllable monster of a word that has been bandied about so much – DIVERSITY. This country has been referred to as a “melting pot”, “multicultural”, “salad bowl” or “cultural mosaic”. While technically these terms all have different nuances to their meanings, the bottom line is usually that we have to be accepting of all cultures. Celebrate diversity.

But is celebrating diversity what made this nation a great one? The study of our nation’s history (not what is currently taught in public school – but don’t get me started on that) will show that there were people of very diverse backgrounds who came to these shores in search of freedom from oppression – and that oppression came in many forms. They had to learn to work together – and the successful communities learned early on that those who didn’t work, didn’t eat. Their diversity did not hold them together – they worked for a common goal, that of survival – and survive they did, in spite of their diversity.

I’m not advocating that anyone give up their heritage or forget where they came from, I just feel strongly that when it comes to acceptance, and diversity, we should have our eyes on the things that we share in common – our humanity – and learn to truly TOLERATE our differences.

Kay

Homeschooling Security Mom, Political Junkie, Believe in upholding the Constitution – and subscribe to the theory that gun control is the ability to hit your target!

http://www.leftbrainfemale.com/

Rule of Law and Originalism

December 4, 2005 Eric Constitution, Theory and Ideas

For roughly the first 150 years of the Republic judges in this country made legal rulings based on the intent and meaning of the Constitution as it was written. This concept, at the time, was not called Originalism. It was considered the norm for a country founded on the principle of the rule of law. James Wilson, Founding Father, signer of the Declaration of Independence, member of the Constitutional Convention of 1787 and Supreme Court Justice, wrote, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” Starting in the 1930’s, and perhaps somewhat earlier, this concept was turned on its head. Legislators and Judges began reinterpreting the meaning of the Constitution to suit attaining the ends they desired. This has become so common now that we have nearly forgotten that there might be another way to do things. It has allowed one of the most dramatic expansions of governmental power imaginable, especially with the use of the Interstate Commerce Clause.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Innocuous, isn’t it? You may recognize, though, that it was recently used in Gonzales vs. Raich to rule that “medical marijuana” laws passed by the states were superseded by the Federal government’s laws controlling marijuana and that raising and selling marijuana, even with a prescription from a doctor, was still illegal. Even if the marijuana never crossed a state border. This is the legacy of the “living document” theory of constitutional law.

The three pillars that this country was founded on (see Bailyn, “The Ideological Origins of the American Revolution and Wood, “The Radicalism of the American Revolution”) were the rule of law, the use of reason and education and technology. Of these three, the rule of law was considered, by far, the most important. The American colonists, in fact, decided on a written constitution precisely because the usurpation of the rule of law was the primary factor leading to the Revolution. The English Constitution was (and is) a combination of historical documents, judicial rulings, “self-evident” truths and customs and practices. In the 18th century the Hanoverian Kings slowly but surely re-interpreted many principles of the English Constitution, altering the balance of power between monarchy, lords and commons (the three branches of English government). This had led to a tyrannical and oppressive state in both England and the colonies instituted by King and Parliament.

The Founding Fathers, as they were fighting for their independence, looked at the problems that had led to their oppression and need for rebellion and determined that one of the key problems was that the English Constitution was a matter of custom and subject to interpretation by individuals (see Bailyn, “Ideological Origins” and Brands, “The First American: The Life and Times of Benjamin Franklin”). They felt that the powers of the branches of government must be balanced and held in check in order to prevent unscrupulous men from interpreting, changing or distorting the constitution of the government. Since change would, obviously, be necessary at times, a process was provided that would ensure that all parts of government and society would be able to have input on, and agree to, those changes. They believed, based on the events of the 18th century, that a “living document” type of constitution was a significant danger to individual liberties and freedoms. Indeed, their liberties and freedoms had been destroyed by just such a situation. In order to guard against it happening again, the Founding Fathers determined that a single constitutional document, written in clear, plain language, would be necessary. This is the basis of that all important pillar of our system of government, the rule of law. Law, it was determined, must not be subject to the temporary and changing whims of the rulers, or, in our case, the rulers and the will of the majority (we can go into the fallacies of populist democracy some other time).

In the current argument for Originalism, many on the Right are arguing that Originalism is necessary in order to provide a known “social contract” that we can all agree to. This is a dangerous line of reasoning, which will be quickly demonstrated by those who argue for “living document” constitutionalism. The idea of the social contract arose in, and around, the ideas of utilitarianism. It was, indeed, the utilitarian answer to how to deal with the fact that generations succeeding the establishment of a government had not been able to agree to that government’s authority or powers. This is, indeed, one of the great flaws in Liberal theory (not modern neo-liberal, quasi-socialist theory, please don’t confuse the two). In Liberal theory the government is granted political power through the consent of the citizens, who abrogate some of their inherent rights and liberties in order to give the government those powers they deem necessary for effective government. This is the answer to the problem of government as a necessary evil (see Thomas Paine, “Common Sense” and Madison et al, “The Federalist Papers”). However, in the U.S. system of government, no such utilitarian solution (social contract theory) was necessary since the problem was solved by providing an amendment process. The amendment process was bounded by fairly stringent requirements to ensure that a small majority (the problem of 50%+1) could not change the Constitution when and how they desired, which would simply lead to the same problems that had been faced during the Revolutionary years. And, over the years, the amendment process was used quite successfully to make changes, even changes that the Founding Fathers would probably not have wanted to see, like popular election of Senators, the income tax, and prohibition of alcohol sales.

The amendment process, in fact, is the answer to the “living document” argument of constitutional theory. Much of the ills that the Left argues against today, the bureaucracy and congress that favor the corporate state over the individual, the military-industrial complex, the gross extension of police search and seizure powers, the intrusion into social issues that should be matters of purely local and state law are, indeed, the result of the “living document”. We can point at any number of laws and regulations passed by congress and any number of decisions made by the courts that have “interpreted” the constitution, rather than being based on its original meaning. Surprisingly, the Left does not (or chooses not to?) see that one is the consequence of the other. To use the words of an originalist justice, Janice Rogers-Brown:

We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws? There are of course many reasons for our present difficulties, but some of our troubles can be laid at the feet of that most innocuous branch – the judiciary…From the 1960’s onward, we have witnessed the rise of the judge militant. [Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian speech”) at 5-6, 9]

This is the outcome of the living document. We have used it to justify anything and everything that we want our government to do, to make it our parent, our guardian, given to government our birthright. The answer to the “living document” theory of constitutional government is that if it can be interpreted essentially at will by justices accountable to none but themselves then we no longer have rule of law, we have rule of man. To those who believe that we are seeing the end of our Republic in similar fashion to the end of the Roman Republic, I say you are wrong. We are seeing the end of our Republic because we have allowed the elites to do to us, voluntary, in the name of progress, that which we fought a Revolution against in the first place. We have allowed them to replace the constitution and the rule of law with the will of the majority and the rule of man. The English Glorious Revolution was overthrown exactly so in the 18th Century. And the American Revolution is being, and has been to large degree, overthrown by the rule of man. Those who refuse to learn from history are doomed to repeat it.