I've mentioned before the Enumerated Powers Amendment proposal offered by the folks over at the Federalist Patriot, and some of the reasons for which I think it a good and a necessary amendment. And truly, I thought I'd never see an amendment proposal that is as good, or that could better that one.
However, Lawrence Auster from VFR has introduced me to an amendment proposal that may well outclass that of the EP Amendment. Now, I've put little reflection to Auster's amendment proposal to this point. So I'm not going to offer any reasons as yet for why I think this one may be a better proposal. Except to say that instead of going after judicial activists and judicial activism, as the EP amendment does, what Auster is proposing is to get to the very heart of the matter which tends to this kind of activism on the part of the federal judiciary. (I have mentioned that the final sentence in the EP amendment does bother me, and this is primarily why)
One thing that has, for a long time now, bothered me about the fourteenth amendment is that its language more or less lends itself to faulty interpretations, and thus to faulty and unauthorized applications. Berger's book, Government by Judiciary, which came highly recommended to me by Mr. Auster himself, deals specifically with the intent of the framers of the fourteenth amendment, which is very helpful to someone like myself who has seen some real problems with the fourteenth, but did not have the scholarly background to determine what the real intent of the framers actually was.
What Auster is suggesting in his amendment proposal, and in light of Berger's excellent scholarship, is that the language of the fourteenth be clarified so as to be consistent with what the framers intended by that language, not what meaning may be squeezed from the text, as Jefferson so aptly put it.
Here's the thing, I'm not endorsing Auster's amendment in this post. What I am endorsing, and emphatically so, is his willingness to explore ways of overcoming the evils we experience at the hands of the federal judiciary, via its long practice of ascribing meanings to certain phrases in the fourteenth which all the evidence shows was not originally intended by the framers of the amendment.
We all know the old adage "the road to hell is paved with good intentions." In this case of the fourteenth amendment, this seems to be strikingly appropriate and fitting. And I absolutely agree with Auster when he says that whether it is likely that we can effect such changes via such an amendment proposal, it is nevertheless vitally important that we discuss it. And I would add that it is vitally important that we discuss, or explore ways, or means, in which there is some real potential for reaching the goal of "returning to constitutional government." The AFB deals particularly with that.
Look for more to be added to this entry later. And in the meantime, go read Auster's proposal, and tell us what you think. As I understand it, this is still a work in progress. So if you can think of something that may be added or taken away, do not hesitate to let Auster know. But on just a little reflection from this end, it looks like he's got the makings of a very good amendment here. Indeed, this may well eventually make its way into the section here at Webster's, Select VFR Articles.
"God grants liberty only to those who love it, and are always ready to guard and defend it." -Daniel Webster
Tuesday, September 11, 2007
Toward Amending the Constitution with pinpoint accuracy
(Note: In addition to the VFR Article linked below, see also Austers entry from today, How to drive a stake into the heart of modern liberalism, which provides some background information on Auster's original proposal, as well as his recent amendments to it.)
Terry, I haven't been following this whole debate as closely as I probably should, since most of it is over my head. But I just had one question to ask about your idea of "balanced government".
ReplyDeleteI think on the whole, rejecting the doctrine of the incorporation of the Bill of Rights in the Fourteenth Amendment would have more positive effects than negative ones. However, I'm a little wary about not having the rights listed in the Bill of Rights protected from infringement by the states. In that case, if a state decided to abridge my religious freedom, I would have no recourse but to move to another state?
Auster also notes, "Schools could once again have dress codes and speech codes." I'm sure he's thinking of speech codes mandating civil behavior, banning obscenity, etc. To me, though, even that seems like nanny-state interference, such as when one of the states was considering a law where students would have to use "Sir" or "Ma'am" with their teachers. Even barring that, however, "speech codes" are ubiquitous in universities, and they're used to suppress conservative, politically incorrect speech. I've generally supported the activities of FIRE, which has been fighting against these leftist speech codes. Given that threat, I can't be totally supportive of an act designed to reduce the scope of the First Amendment, can I?
You might say that states would not impose such "speech codes", especially the red states. But the federal government has many ways of bribing states into compliance. For example, the federal government has threatened to withhold funding in order to get all the states to raise the drinking age to 21, and at one point to force all states to have a 55 MPH speed limit. I'm not sure how Auster's amendment would stop the feds from bullying around the states like that. Would we repeal the offending parts of the Fourteenth Amendment at the cost of de facto repealing the Bill of Rights too?
Any thoughts?
John, the short answer to your question is this...
ReplyDeleteOne thing we've failed to do over at the AFB, and we need to do (Mike, Edmund, Mom, let's discuss this), is to provide links to the foundational material for our position. To answer your question I would invoke the federalist writers, Hamilton, Madison, Jay. They actually deal with this question of yours. I will find the quote (because I don't want to mess it up too bad in trying to paraphrase them), and will post it later. But federalism, as the founders understood the term, involves both centrifugal and centripetal forces. Right now, for all intents and purposes, only one of these forces is in operation.
More later.
-Terry
Terry, thanks. I'd also wonder what your thoughts are on speech codes generally. Do you think universities should be able to have them? I always thought the argument that was made in favor of them was really inane -- that a university is a special place, where we should avoid offending each other the way we might in some other situation. If we only have the right to free speech in government-designated "free speech zones", for example, then our rights become almost meaningless.
ReplyDeleteSo am I forfeiting a claim to be any kind of constitutional originalist if I claim that I have certain rights which ought to be protected not only from the feds and state governments, but even from something like a university (which may be public or private)? Is the issue just that the federal Constitution is not the right place to protect the right of free speech against those other actors? I just can't imagine the Founding Fathers accepting the right of free speech being circumscribed so narrowly as could happen if speech codes continued to be adopted by a wide range of institutions, public and private.
Hope I'm not sounding ACLU-ish here! :-)
"Would we repeal the offending parts of the Fourteenth Amendment at the cost of de facto repealing the Bill of Rights too?"
ReplyDeleteJohn, let me answer you this way, we can get to the quotes later. First, the Bill of Rights was attached to the constitution way before the fourteenth amendment was ever ratified. The fourteenth amendment, or, rather, the incorporation doctrine, is what's responsible for defacto repealing the bill of rights (that's already been done, for all intents and purposes), which was originally intended as a check against the power of the central government, not against the states. In other words, due to the ID, the purpose of the bill of rights has already been overthrown, and the protections it affords us are being systematically overthrown. If amendments nine and ten have no meaning other than what the federal courts determine them to mean, then the other eight aren't worth the paper they're written on, and it's just a matter of time before all is lost. So, what you're really arguing for here is for the federal government to continue to water down the bill of rights until it is completely and utterly impotent with regard to the protections we're supposed to be afforded by it.
Alexander Hamilton, in Federalist #84 argued against attaching a bill of rights to the federal constitution because, as he noted, 'they would give a colorable pretext for claiming powers that didn't exist.' He warned that 'whatever fine declarations may be put to defining the freedom of the press, it was altogether impracticable to leave no room for artful men to wrench its meaning out of context, and to give it new meaning never intended.' His warnings were unheeded and everything was fine until the courts were given an avenue to incorporate the bill of rights into the fourteenth.
I think one reason we raise these kinds of concerns is in fact due to the effect of the incorporation doctrine itself, when ya boil it all down. Because we are so accustomed to what goes on under the operation of the ID, and since we have nothing other than our actual experiences to measure it by, we fear that what we witness under the ID would be what we'd witness and experience under a balanced scenario, only worse. But why do we fear the state governments more than we fear the central government? If it's government we fear, then the bigger and more powerful the government is, and the more centralized its power, the more we ought to fear its abusing its absolute powers. And the more we should try to restrict it to a definite sphere of operation.
The way Auster's amendment would deal with the fed's ability to bully the states around, is it would remove its most effective weapon with which it currently bullies us, the ID.
My belief is that our whole approach has been wrong here. We just accept (because that's really all we've known for over a century) that the ID is a constitutionally consistent doctrine. So we level our attacks against its effects, not against the cause, which is the ID. As long as we continue to do that, it's only going to get worse and the fed will eventually absorb the states as the democrats argued in their appeals against the fourteenth in the 1870's.
Under your scenario you would have two options. Either move to another state, or stay in your state and try to effect change there. The fed would have nothing to say about it as long as your right to life, liberty, and property were not being violated under a balanced scenario. But what makes you believe that your state would seek to abridge your religious freedom in the first place? What makes you believe that the federal government is not much more likely to do so under the ID?
-Terry
Mr. Morris,
ReplyDeleteVery well done.
When I read some of the replies to Mr. Auster's post, I could only think of the quote I utilized at this week's Troop meeting: "One man with courage makes a majority." The Scouts weren't able to identify the speaker (Andrew Jackson) but they did understand that it meant you must take a stand to have any effect.
Mr. Savage,
I'm thinking that your(and my own) aversion to speech codes should serve us as a motivating factor to take up our duties as citizens once the Constitution has been changed to eliminate the Incorporation Doctrine. It is a daunting thought that we would share that responsibility with others who may not agree and so change the very fabric of our communities. That's the risk and crowning achievement of a truly participatory form of government. If we are not willing to take on the responsibility of participation, then we must live with the results obtained by those who are willing to participate.
I didn't mean to horn in Mr. Morris, so if I have spoken out of turn, my apologies.