Tuesday, March 11, 2014

Exposing the “Living Document” Lie

Despite all historical evidence to the contrary, it is often claimed that the Constitution is a “living document” that is easily malleable through semantics and modern desires for extended federal power.

This is the view that saturates public schools, the mainstream media, law schools, and politicians. We are even sometimes told that a primary benefit of the United States Constitution is that it can be so easily manipulated at the will of politicians and judges.

However, this view flies directly against the evidence of history, and disputes the words of those who supported the document during the ratification debates. After all, the Constitution only provided the general government the powers “expressly delegated to it” according to Edmund Randolph, who had the duty of explaining the Constitution to Virginia’s Richmond Convention.

Similarly, when naysayers in South Carolina raised the same concerns of unlimited powers, Charles Pinckney rebuked their claims strongly by echoing these sentiments and insisting, “we certainly reserve to ourselves every power and right not mentioned in the Constitution.”[1] This clarification was not an isolated phenomenon; the Constitution was described this way in all states by its vigilant supporters.

The plain understanding that the Constitution only gave the general government the powers that were specifically enumerated was not a “theory” during the Constitution’s writing or adoption by the states. On the contrary, it was the only understanding reached by the states, and held until modern reinterpretations of the Constitution took hold. From the origin of the ratification debates, James Wilson’s “State House Yard Speech” confirms this to be the case. To the accusation that the Constitution gave the general government powers which were not explicitly stated, Wilson responded to such an assertion by noting that “everything which is not given is reserved.” Wilson said that power in the Constitution is not granted by “tacit implication, but from the positive grant expressed in the instrument of the union.”[2]

The constitutional model of Britain was considered insufficient in the states because it did not bring about a restricted centralized authority that was held down by specified powers. Britain’s constitution is a series of documents, traditions, and court decisions, which in summation characterize the “British Constitution.” Thomas Paine wrote in Common Sense that he found this type of constitutional framework to be “subject to convulsions.” This was stated categorically. After all, it could not be denied that the British government (kings such as John, Charles Stuart, and James II) consistently worked to undermine the liberties clearly spelled out in The Magna Carta, Petition of Right, and English Bill of Rights, and other constitutional documents and happenings.

Britain had a legislature (Parliament), an executive (the king), and a judiciary (the royal courts), so this type of governmental structure can exist without the necessity of a written constitution. Instead of giving the government palpable power to do everything, our founders had the ingenious wherewithal to draft a Constitutional model that is instead based on powers that are explicitly spelled out, chiefly in Article I, Section 8.

If the Constitutional model was truly that of a “living document,” an inquisitive mind may question why the founders made the document extremely difficult to alter through the amendment process notated in Article V. The notion that the states will easily come to the same conclusion on adjusting the Constitution is a faulty one. Obtaining sanction from 38 states on any topic, constitutional issues notwithstanding, is no easy feat. This limitation can be considered as a strong barrier of obstruction that is nearly impossible to circumvent.

It is irrefutable that founders made the document difficult to alter for a reason. Those who espouse views to the contrary do not seek to consider the document “living” because it can be changed; they strive to misinterpret specific clauses within the document to justify actions of an almost unlimited variety, using such content to draw upon a vast reservoir of untapped power. Thomas Jefferson wrote that by doing so, Congress “is to take possession of a boundless field of power, no longer susceptible of any definition.” The tendency to do so was considered constitutionally erroneous and invalid.

Those who advocate the “living document” doctrine typically point to several clauses within the Constitution’s text to justify these views. These clauses are sometimes referred to as the “elastic clauses.” Patrick Henry, a persuasive opponent of the United States Constitution, called them “sweeping clauses” because he believed they would provide overwhelming power to the general government and act to eradicate the power of the states. When it came to Henry and many other voices of opposition, the antagonists were swiftly rebuked by those who were responsible for bringing the states to an understanding of what the Constitution did.

One of the “sweeping clauses” is the Necessary and Proper Clause, which is sometimes used by government to justify a variety of “implied” powers. James Wilson, a leading supporter of the Constitution in Pennsylvania, explained that this prose did no such thing. Wilson stated: “the concluding clause, with which so much fault has been found, gives no more, or other powers; nor does it in any degree go beyond the particular enumeration.”[3] The clause’s text solidifies this view, and is written in a distinctively clear manner: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [emphasis mine].” The Necessary and Proper Clause only gives Congress the ability to perform tasks incidental to carry out the specified enumerated powers. In Virginia, Edmund Randolph responded directly to Patrick Henry regarding the clause. Randolph said: “The gentleman supposes, that complete and unlimited legislation is vested in the United States. This supposition is founded on false reasoning…in the general constitution, the powers are enumerated.”[4]

The General Welfare Clause is another portion of prose which is used to rationalize the living document model, the portion of Article I, Section 8 which gives Congress the power to “provide for the common Defence and general Welfare.” Unfortunately, the modern understanding of this phraseology is completely divergent from the clear meaning of the expression at the time. The clear legal meaning of the phrase, borrowed from the Articles of Confederation, meant a small subset of duties each individual state considered appropriate to delegate to a separate authority. The states gave those powers to the general government out of convenience.

Roger Sherman, who moved to have the phrase added to the Constitution, is the best and most persuasive voice of clarification of the often misunderstood clause. The expression was added on August 25th in Philadelphia, so it could be connected with the clause for laying taxes and duties.[5] In other words, he wanted to make it explicit that taxes could only be collected for the specified powers.

Sherman was recorded as having made the observation that the “objects of the Union” were “few.”[6] Sherman listed “defence against foreign danger,” defense “against internal disputes & a resort to force,” “defence against foreign danger,” and “regulating foreign commerce & drawing revenue from it” as the powers of the general government. This is entirely consistent with Madison’s words from The Federalist and other sources, and was the conclusive understanding that the other representatives held in the Philadelphia Convention and the state conventions afterward. Historian Brion McClanahan writes that the initial proposal for insertion of this clause was rejected because it was considered to be redundant and unnecessary, passing only after Sherman’s persistence.[7]

Madison wrote this about the General Welfare Clause’s plain meaning when objecting to a 1792 bill which called for subsidized fisheries. The General Welfare Clause was cited as justification to pass such a bill. Madison responded:

“I, sir, have always conceived – I believe those who proposed the Constitution conceived, and it is still more fully known, and more material to observe that those who ratified the Constitution conceived –that this is not an indefinite Government, deriving its power from the general terms prefixed to the specified powers, but a limited Government tied down to the specified powers which explain and define the general terms.”[8]

In Madison’s estimation, the phrase simply reiterated that the specified powers were tied to “general terms.” In corroboration of Madison’s view was the noteworthy ratification of the Tenth Amendment in 1791, which made clear that powers not delegated are retained by the states or the people.

It is always helpful to revisit the primary sources and happenings of the state ratification conventions to explain what the Constitution did, rather than what modern voices claim. If conflicting, the first is always a more desirable and stronger explanation of truth. When forced to choose between views of what modern influences say about the Constitution, and what the founders and framers said about it, we do ourselves great justice as patriots to choose the latter every single time.



Eichmann trusted in the State too

The scientific study of authoritarian sociopathy really began with the Milgram Experiment, which found that 65% of otherwise psychologically healthy people would administer a lethal 450-volt shock to a complete stranger based upon nothing but the verbal prodding of an authority figure in a lab coat. What’s seldom pointed out is that Stanley Milgram designed his experiment in response to the chilling testimony of one Adolf Eichmann, a Nazi officer convicted in 1961. Adolf Eichmann oversaw the logistics of kidnapping and forcefully relocating people deemed enemies of the State to prison camps, and death camps in Nazi Germany. When people joke that the trains ran on time, they can thank Adolf Eichmann.

Commentators on his trial said that he appeared “ordinary and sane” and that he displayed “neither guilt nor hate.” Hannah Arendt’s book on the trial was titled “Eichmann in Jerusalem: A Report on the Banality of Evil.”During questioning he showed no remorse for his role in the murder of his passengers, and in his own defense he flatly repeated an all too familiar phrase:

“I was just following orders.”

In Eichman’s view he was acting upon the decisions of the State, which absolved him of all guilt. He coldly confessed to all his actions, but never acknowledged any personal responsibility.

What’s interesting about Adolf Eichman, when compared to those convicted in the Nuremberg Trials 16 years prior, is that this lesser known Adolf never killed anyone. Now, it’s a matter of historical debate whether or not Adolf Hitler ever directly killed anyone, other than himself. Historians dispute whether he killed his wife, Eva Braun, or she killed herself. In all likelihood Hitler took lives as a corporal in World War I, but it’s of little concern, because Hitler most certainly ordered the deaths of millions of people. Adolf Eichman never did that either. In his trial he was found not guilty of personally killing anyone, but he was still found guilty of crimes against humanity, and war crimes.

When the judges explained their reasoning during sentencing they repeated a quote in the transcript when he said:

“I will leap into my grave laughing because the feeling that I have five million human beings on my conscience is for me a source of extraordinary satisfaction.”

See, Eichmann’s crime was not simply obeying unethical orders which lead the death of his passengers. His crime was willfully and enthusiastically embracing the legitimacy of those orders. He believed in the rectitude of his actions, which is a different moral infraction that being forced to drive a train against his will.

Adolf Eichmann was an authoritarian sociopath, and I would argue that the Adolf Eichmanns of the world are far more dangerous than the Adolf Hitlers of the world. When atrocities are committed by militarized societies the perpetrators are usually a minority of the population, and the victims are usually also a minority of the population. It is the witnesses who are the majority, and thereby the most capable of meaningful intervention. This was perhaps best expressed by Irish philosopher Edmund Burke who said:

“All that is necessary for the triumph of evil is that good men do nothing.”

Although that begs the question, are those who do nothing really good? Without the Eichmanns of the world, the Hitlers have no capacity. When the evils of German National Socialism came to light, and the world was screaming “never forget,” and “never again,” only to promptly forget, and recycle those slogans a generation later, Stanley Milgram was asking the question, “How many Adolf Eichmanns are out there anyway?” In his final analysis, published in Psychology Today in 1975, Milgram wrote:

“I would say, on the basis of having a thousand people in the experiment and having my own intuition shaped and informed by these experiments, that if a system of death camps were set up in the United States of the sort we had seen in Nazi Germany, one would find sufficient personnel for those camps in any medium-sized American town.”

Statism is a mental disorder. That is not a euphemism, but a fact. There is a prevailing view in many societies that this thing, called the State, wields absolute supreme authority. In its wrath the State can smite their enemies, and enforce their prejudices. In its mercy it can heal the sick, and feed the poor. In its power it can turn paper into gold, and if they supplicate enough it can even change the weather. These people believe that society is the product of centralized violence, and not the aggregate of their own decentralized decisions. Those who deeply internalize “obedience to authority” as a core principle become capable of the worst forms of murder, and tolerant of the worst forms of abuse. They even chastise those who resist through horizontal discipline. But most importantly, they become capable of passively witnessing evil, and even facilitating it, believing, as Eichmann did, that their god absolves them of personal responsibility.


There is a  new  lot of postings by Chris Brand just up -- on his usual vastly "incorrect" themes of race, genes, IQ etc


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