Friday, October 28, 2005

The Law, The Constitution and Freedom

I cringe every time I hear the phrase “There ought to be a Law.” Every time we pass a law, by definition we are restricting Freedom.

Much of the law we have comes from logical choices to restrict the way we mistreat our fellow humans. That is to say, Murder, Stealing, etc not only is founded in morals, but it is there to restrict human behavior so as to protect others from harm. Restricting Freedom to harm others is still Force.

This is why George Washington said that the definition of government is “Force.”
“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master." - George Washington

This is where we need to understand the purpose of the Constitution. The framers realized the importance of restricting government from being over intrusive so they set up a document that was meant to be founded upon correct principals. Truth and Principals never change, and the document was to be interpreted by Justices with that in mind. If it needed revising, then it should be so obvious that a Constitutional Amendment that requires a “Super Majority” to pass should only change it.

The framers recognized that if Justices ever saw their role as to make the Constitution a “Living Document” or a document that needed to “Evolve” or that its application needed to “Evolve”, then we would no longer have a country that was ruled by law and principals, but a country that was ruled by unaccountable Judges.

This is what is at stake in the appointment of a “Strict Constitutionalist” or also called a “Strict Constructionist” to the Supreme Court. Justice Steven Breyer on the Charlie Rose show tried to make both cases, i.e., that the document was only to evolve with constitutional amendments but that he thought the application of it’s principals should be applied by the Judges. He tried to say that the founders could not have envisioned the internet, automobiles, etc. He fails to realize that these modern advances don’t change principals, and if they need to be looked at, then it is the job of the Legislature to do the changing because it puts the power back in the hands of people who are accountable. His view is so wrong because it puts too much power in the hands of Nine people, and their “opinions” become law.

Justices that use International law pick and choose those international laws that fit their agenda. We left Europe to get away from governments that were not freedom friendly and we should only look to our document that truly protects freedom like no other countries laws can.


At 12:32 PM, Blogger Intellectual Insurgent said...

Marbury v. Madison enshrined the right of the court to interpret the Constitution. So, the legislature's will should not be blindly followed but should always be scrutinized for Constitutional infirmities.

With respect to "strict constructionism", watch what you wish for. There are many areas outside the bill of rights that implicate sensitive federal v. states' rights issues. That is a philosophy question. Roberts argued with the Oregon AG about the Right-to-Die law, but Scalia and Thomas dissented from the opinion that struck down CA's medical marijuana law. They argued that the federal drug laws intruded on states' rights.

All the hooey about strict constructionism is a smokescreen for advancing one's agenda. Now that all the R's are pretending to be civil rights lovers by honoring Rosa Parks, they are the same people who would have demanded that she be held accountable for disobeying the strict interpretation of the law.

Strict construction of the Constitution would have made Brown v. Board of Education go the other way because there is enough in the Constitution to suggest that the framers did not believe blacks were equal human beings before the law. Segregation had a basis in the Constitution. Do you think the Court was wrong to end it?

At 1:50 PM, Blogger Free Agency Rules said...

Yes, I think the Legislature should have ended Segregation, not the Courts.

It was Christians in the North who were for ending Slavery. It was Christians, both Dr. Kings Christians and White Christians that fought for Equal Rights via Rosa Parks.

I don't like this baloney about "Commerce Clause" being the overriding factor in States Rights. I think they are reading something into the Constitution that is not there. Same with Abortion. If some of these things had to make it through Congress, they would die on the vine. But instead we get unelected "Olympian High Preists of the order of Black Robes" making landmark decisions for us.


At 2:00 PM, Blogger Free Agency Rules said...


A serious note on the Brown v. Board of Education.

How is this statement..."All men are created equal...", not showing that the framers wanted Blacks to be equal in treatment under the law?

Does the Bill of Rights specifically mention/exclude Blacks?


At 2:05 PM, Blogger Free Agency Rules said...

BTW Scalia is my hero. I think he is right over 95% of the time. I too would have voted with him and Thomas on the CA medical marijuana law.


At 2:18 PM, Blogger Free Agency Rules said...


Here is how I think the SCOTUS should work as in the Brown v Board of Ed case.

The Justices should have issued a ruling along this lines...."We believe that the Constitution has some language that implies that blacks were not equal under the law, however, under the "all men are created equal" phrase, we think there is at least equal language from the framers that Blacks should be treated equally.

We therefore request the Congress to redress this wrong by passing statutes that make this equal protection clear."

This way the Judicial Branch is not in the business of making laws.

Make sense?


At 8:02 PM, Blogger Little Miss Chatterbox said...

Great Post. Scalia and Thomas are my heroes as well. Regarding the constitution as a "living, breathing document" is not what the founding fathers had in mind. I was in shock when I first heard Breyer justify that it was okay to consult foreign law. There is nothing more important than getting more strict constructionists on the court. When you hear Thomas or Scalia speak you are just in awe. But when you hear Breyer speak you think how did this guy get on the court? Oh, yah that's right, Clinton put him on there.

At 9:59 PM, Blogger Roseville Conservative said...

FAR... again, thanks for your support of my blog.

You basically said it all here so I have nothing to add...

At 10:36 AM, Blogger Intellectual Insurgent said...


Your proposal sounds reasonable and well-intentioned in theory, but it goes beyond the scope of the Supreme Court's powers. The Supreme Court does not have the power to issue advisory opinions. It is what is called a ripeness issue. For example, if a horribly unconstitutional law like the PATRIOT Act is passed, the Supreme Court can't address it unless there is an actual "case and controversy" involving the act. What the means is someone has to be arrested or otherwise denied their rights and then there is a dispute that is "ripe" for adjudication. The Court has no business telling the legislature what it thinks about laws in the abstract. It can only issue opinions determining whether an act of legislature is constitutional.

Article 1, Section 2 defines blacks as 3/5 of human beings. "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

All "people" are created equal but the Constitution did not recognize blacks as full-fledged people. It took judicial activism to make that happen.

At 11:51 AM, Blogger Free Agency Rules said...


I was referring to the idea that if a Case came before the court, that instead of "making new law", they either uphold it or they turn it down with an opinion of why they won't here it.

I think you will agree that the founding fathers were quite aware of the idea that in history the power to vote was usually tied to "Property Ownership" and they knew that blacks were generally not property owners. But, they did not want to exclude them entirely.

Just a thought on the apparent contridiction.


At 11:54 AM, Blogger Free Agency Rules said...


Wait if Blacks were not "persons", then the quote "three fifths of all other Persons." could not have been talking about blacks, since they were not "persons" with that line of logic.

Interesting? Logical?


At 3:49 PM, Blogger Reign of Reason said...

No... every time we pass a law we a not necessarily restricting "freedom".

I hear this refrain again and again from libertarians. Most laws are there to protect freedoms. People have different resources in a free society: some have more economic or physical power than others. Laws (in the best cases) protect those without such power from those with it.

Contrary to the phrase, “we are NOT all created equal” – not in a society based on capitalism anyway.

Anyway, the Constitution and our body of laws ARE living documents... Do you really think this society should live with the morals, values and beliefs that we did 200 years ago?

Yes, we need a 'super majority' to change things -- to guard against whim -- but changes to our way of life and the way that is codified in law is precisely what Jefferson was talking about when he said we (may) need a revolution every generation. You may want to read some of their letters (esp those by Franklin and Jefferson).

Judges are appointed to life terms for a very good reason… They are NOT accountable to public whim and are expected to rule based on the core principles enshrined in the constitution. If we left the “principles” you mention up to the legislature we’d still have slavery, segregation and no interracial marriage: all issues that were decided by courts considered ‘liberal’ in their day because they didn’t cater to public opinion or the desire of the legislature.

At 9:23 PM, Blogger Free Agency Rules said...


Said: No... every time we pass a law we a not necessarily restricting "freedom".

Yes, by definition government is force and laws are to almost always “thou shalt not’s” Laws against Stealing, Laws against Murder, laws against smoking in bowling alleys, laws against slander, etc. See the pattern…. Laws “Against!”

Some laws are “Thou Shalt” laws. Laws that say we must pay taxes, Laws that say we must drive on the right side of the road, etc. See the pattern again.

Name me one law that is not forcing us to either not do something or to do something. Restricting the freedom to do something or to not do something.

We are all born equals under the law. In other words we all must live by the same rules. The phrase was never intended to mean that we are all born the same.

Quite the contrary, while some in this great country would love for us to all be equal, others like myself want a Nation of Individuals, not a nation of equals.

Discrimination is not always a bad word unless you are a liberal. Some of us want to be able to get all possible grades, while others think that everyone should automatically get an A in school.

The Constitution was not meant to be a “living Document.” If that were the case then every day we could see changes based upon what somebody was “feeling” that day. No, the principals in that document were meant to be “eternal” truths. Stealing was wrong 200 years ago and it has not changed today, it is still stealing. Having the Internet or Cars, has not changed what is right.

Rick said: and are expected to rule based on the core principles enshrined in the constitution.”

We are in total agreement here. They are supposed to rule on the core principals in the Constitution. Very well said. This was the intent of my post. This premise is that the document was not meant to be a “Living” document.

Many of the founding fathers were slave owners and were working to get that changed. They knew it was morally wrong, just as I know that subsidies are morally wrong but am locked into doing it because it is the law and I have no choice. So, the framers of the Constitution realized that the Congress could make Amendments to change this type of wrong, but because of the separation of powers doctrine, knew that it was not the job of the Judiciary. They were to only rule on something that was brought before them and once before them they were to send it back to the legislature to fix it if it was wrong.

Rick said: “we’d still have slavery, segregation and no interracial marriage.” You don’t really believe that do you. You think that only the 9 people in Black Robes over the years had the morals to fix those wrongs? Come on, you don’t really believe that silly remark do you? Surely you are just trying to make a point that it might have taken longer if left up to the Legislature, right? Please tell me that is the case, so I may respect your opinion.

Rick said: read some of their letters (esp. those by Franklin and Jefferson).

I have, and I have also read much of the Federalists Papers. I am a big fan of the founding fathers. I believe they were some of the greatest men to ever live on this earth.


At 8:45 AM, Blogger Intellectual Insurgent said...


It's hard to say whether we would or would not have segregation and the like today if the activist Court didn't demonstrate incredible courage 50 years ago. That is what inspired the Civil Rights Act 40 years ago and transformed the culture of the nation forever. Not sure if America would have morally evolved as quickly but for the Brown v. Board decision.

At 9:52 AM, Blogger Free Agency Rules said...


I agree that it "might" not have evolved as quickly, but it also "might" not have been much longer either.

There is no question however that the court was an Activist court and that, as you know poses dangers to our freedom.

The framers were incredibly wise when they separated the powers and we can't have the court, both interpreting laws and making them.


At 10:02 AM, Blogger Free Agency Rules said...

I should have added, that it was wrong for our citizens to not fix those problems, but two wrongs don't make a right.


At 12:13 PM, Blogger Intellectual Insurgent said...

Here's some language from Plessy v. Ferguson to think about. This is the decision that Rehnquist believed was correctly decided.

"The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate."

Here is the Court saying that not just the judiciary, but the Legislature should both stay out of segregation and let the community decide. In other words, they are saying that the majority should be able to define the rights of the minority - something inconceivable in a republic.

"So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order."

Here, the Court is saying that the customs and traditions of the people should trump the 14th Amendment. This is the decision Rehnquist believed should be upheld. A decision that says public peace (whatever that means) is more important than the Constitution.

Here is the entirety of the opinion.

See how the Court dismissed the arguments that you made.

At 1:08 PM, Blogger Free Agency Rules said...


I read those quotes differently than you do.

My take is that he is saying that "Birds of a feather naturally flock together" and no amount of legislation can force people to change mother nature.

Now should that trump the 14th amendment, no, and those people involved should keep challenging any decision that says blacks are not equal under the law.

Now, if my understanding is correct, that is not the same as "forced integration" or "forced segragation", am I correct?

If I only want to play golf with Republicans, should I be able to have a golf club that only allows republicans?

This is a balance that must be kept and should rightfully belong in the legislature.

Even today we have all races naturally associating with their own race in preference to not trying to force their associations in every race.

I don't think equal treatment is the same as forced integration do you?


At 1:14 PM, Blogger Free Agency Rules said...

Here is the biggie....

If I own a business of making widgets, should I be forced by the government to observe quotas?

Does the government have the right to over-ride my preferences?


At 1:37 PM, Blogger Intellectual Insurgent said...

The government shouldn't force integration or segregation. The Plessy Court was arguing that by outlawing segregation, it was forcing integration and that is simply untrue.

Who you associate with is voluntary. It is such an important right, it is part of the First Amendment. You can have a club that allows only Republicans, just like you can have one that only allows Whites or Jews or Blacks or whoever. But the government cannot mandate that separation.

We are in agreement on quotas. I fundamentally disagree with that. Hire whomever you want. Presumably, if you are a rational employer, you will search for the best people among the biggest pool of candidates. It is your choice to exclude people based upon whatever displeases you.

At 3:08 PM, Blogger Free Agency Rules said...

mmmm, let me see, if I am a Pro Basketball Team owner, I am going to hire all white males....yea, right! :)

So, my view is that Rosa Parks should have been allowed to sit anywhere she wanted to on a public bus, but not so on a private one. Is that basically what happened?


At 3:36 PM, Blogger Intellectual Insurgent said...

Not if you are a smart owner of a basketball team. :-) Maybe hockey. :-)

Big difference between public and private. That's why public universities can't have affirmative action, but private ones can.

At 6:01 PM, Blogger Free Agency Rules said...


-"Big difference between public and private. That's why public universities can't have affirmative action, but private ones can."

Do you mean the reverse of above?

Private ones can avoid affirmative action, but public ones must have AA?


At 9:49 AM, Blogger Intellectual Insurgent said...

In CA affirmative action is not allowed in public schools (because it is government action), but a private school can have it.

At 9:53 AM, Blogger bhlogger said...

Hi FAR. Been awhile since I posted here, but I still pay attention.

You said: I agree that it "might" not have evolved as quickly, but it also "might" not have been much longer either.

I doubt that. Substitute "gay" for "black" in this case. Without judicial intervention a person could be fired from their job simply for being gay, although who you sleep with in your bedroom has no bearing on how well you do your job.

Conservatives and self-proclaimed "Christians" seem to think that this kind of treatment is A-OK. I seriously doubt they'll ever change their minds on their own. Strange considering the Bible says "Love thy neighbor" and not "Love thy neighbor, unless he or she is a homosexual."

Also strange, considering the "conservative states" generally have a higher divorce rate than some "liberal" states, which means to me that all that talk about the importance of "protecting marriage" is a load of you-know-what. But that won't stop them from supporting a constitutional amendment to make gay people a lesser citizen than themselves.

What you folks call acts of "activism", I call acts of "enlightenment". We're not barbarians... we should not act like it. Singling any one person out to be treated differently than the average American citizen because of their race, their sexual orientation, their beliefs and/or their religion are acts of barbarism... in many cases it took the courts to strike down laws seeking to limit the rights of people different than your average white Christian. I, for one, applaud their efforts and believe that should the Right be successful in turning judges into conservative automatons, we are doomed to repeat the sins of our past.

At 2:36 PM, Blogger Free Agency Rules said...

Hey Bhlogger,

Welcome back. We often disagree but we usually can do it with respect, and you know I do respect your opinion. You always have good points that cause me to reflect.

This is good because there are times when I change my view based upon others pointing out inconsistencies that force me to reevaluate my position. It doesn’t happen often, but it does happen to anyone with an open mind.

I will try to answer your points the best I can.

Fist one thing I think we can agree on...."People should not be fired just because they are gay."

People who do so have bias that are wrong unless they somehow feel threatened.

Now, we all know that a business transaction is where one person wants something (labor) and is willing to pay for it (wages.)

It is a two-way proposition. When I buy a can of beans, I give $2.10 for it because I want the can of beans more than I want the money. Same thing occurs with an Employer. An employer pays wages because he would rather have the work done than the wages paid. But, if I want to buy a can of beans with a blue label rather than a green label, I should have that right without the government telling me which one I had to buy.

The problem I have is that I don’t like the idea that the government can stick its nose in my business, if I happen to own one.

If I own a house and employ a housekeeper, am I wrong in not wanting the government to enter my house and tell me who to hire and who to fire?

Business is no different. I think it is possible to “Love thy Neighbor” and still not want the government to butt Its nose into my business. Sound reasonable?

I applaud people striking down injustice also. The only place we disagree is I am fearful of turning that “power” to 9 unelected people instead of those who have less power to exercise what might turn out to be tyranny. See the difference?

I think people have a tendency to seek power, and that in a position of extreme power, they will seek to “force” their will on the governed. Perhaps you think 9 people with black robes are some how more enlightened with higher morals because they went to law school and got good grades?

Again I think you have good points, but I think mine are just as valid and we all must choose when points conflict. That is what makes discussions so much fun.

We left England because we didn't like having a King. I think most of us don't like the idea of having 9 Kings rule us any better.



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