Friday, July 30, 2010

Preening For 'Principles' Isn't Prudent

"Should I vote for Candidate A and measure B, even though neither one is my ideal?"

Alright, this is not philosophy, it's politics. Politics is engaged in to get political measures accomplished. The 'getting accomplished' part is easily seen as a revolting part, a part which I, and most of us, would like nothing more than to distance ourselves from, but too often that sentiment is one which is taken as an easy opportunity to place ourselves upon a pedestal far above that of those lowly politicians, and as an opportunity for us to bask in the approval of our own preening gaze.

But unless you are endorsing dictatorial powers, you don't get to enforce your views upon others, no matter how 'right' you may be convinced you are, and so as a person who reveres liberty, you must work to reach agreement with those who don't see things the way you do, and that requires of you both the ability to engage in some of the give and take of compromise, as well as the ability to see when the process is demanding too much and passes beyond legitimate compromise and into the realm of violating your principles - or theirs. There most definitely are agreements that should not be made... and it's important to recognize those situations, but it can't be done with the equivalent of a bumper sticker being used in place of a principled reasoning.

This isn't an easy process and it most certainly isn't a clean and neat process, but it is the one that is required of a people who intend to be, and wish to remain, a free people.

Politics is not a static, mechanical process, it doesn't lend itself to scenarios where you can say

"In all cases, when issue 'A' occurs, respond with issue 'B', until issue 'C' results, then return to your starting point"
Sorry, no, doesn't work that way, and it doesn't work that way for the same reason that YOU don't work that way, for the same reason that YOU don't think that way, and for the same reason that YOU wouldn't put up with living that way, and that is because it would be unreasonable and inhuman.

We are (even when you might attempt to avoid it) thinking creatures, hopefully rationally thinking creatures, who have the ability to Reason and hopefully some skill in reasoning, and we must attempt to apply those skills in our lives as much as possible. Rousseau and the rest of leftist thunkers would have us think that we are merely reacting creatures, creatures whose lives, thoughts and actions are determined entirely by external events and ingrained and uncontrollable passions which it is the duty of the elite legislators to control through the use and application of political powers - and that my friend is the very basis for every leftist and statist program out there, from free lunch at school, to being provided a free living, lunch, dinner & doctor and pension at retirement.

But we are not animated pinball machines, and if we tried to live without actively thinking we'd be devoured by nature in nothing flat. And thinking is not akin to following a checklist of static do's and don'ts in a flow chart. Everything that occurs, occurs within a given context, contexts which include not only their own specific and immediate environment, but numerous factors leading up to them and surrounding them, and a varying likelihood of other factors following from them, and the never to be escaped uncertainty as to what exactly might happen next, which may well confirm, alter or blast all of your expectations to pieces.

Politics, like life, requires attention to the moment, awareness of the past, and a canny view of what's coming down the pike. What may have worked at one time, 1992 for example, is unlikely to produce the same results today, and even if they did it's highly likely that those same results in the different context of the here and now, would be entirely undesirable.

Principles give you general rules for reasoning, they tell you how to think, but they cannot tell you What to think, and to use them as if they give you particular answers, rather than as guides to discovering the best answers, is to mistake their purpose and to destroy the good results you had expected the use of them to achieve.

Principles are a vital component of reasoning, and vital to a successful, worthwhile, moral life - but they are tools to aid you in thinking, not tokens which can substitute for thought, or aid you in escaping the effort of reasoning.

John Burns, of the St. Louis Tea Party Coalition, recently put up a very good post on Gateway Pundit (get well soon Jim Hoft!), conservatives in general and those of us in the Tea Parties in particular, that we must THINK in choosing our candidates and issues, and that insisting on 100% compliance with your personal litmus tests, and of refusing to work with, or even denouncing, those who don't meet your pre-formed positions.

"Winning back the country from the grasp of Socialists is difficult work. It’s a task that will take many years and the tireless effort of countless individuals. But although this is a long-term process, winning this election is important. Because of this, we can’t get bogged down in internecine warfare, turf battles and ego clashes. And it may seem highly counter-intuitive, but for this specific election cycle where so much is on the line, we can’t forget that “perfect” ideological candidates (candidates who are “perfect” on all of our issues) aren’t always the best choice at the polls in the primaries."
But many folks out there are loudly, and boastfully, insisting on particular, litmus test approved 'perfect conservative' candidates, or else they'll take their vote, uncast, and go home, and as John points out to them, this is a suicidal idea,

"Another sure path to failure: making the perfect the enemy of the good. This election cycle is very similar to triage in an army field hospital on the battlefield. If you’ve got one man shot in the arm, another shot in the chest and only one doctor, some quick, decisive decisions must be made if both men are to survive. The doctor must attend to the chest wound first because it’s the most serious."

and it is a recipe for the defeat of every value these people claim to hold dear. Jim Durbin also posted on the subject, as did Bill Hennessy, who had an excellent observation,

"On November 2, I will follow the advice of the wisest man I every met, William F. Buckley Jr. Buckley’s rule for picking a candidate was simple: “Always support the rightward-most, viable candidate.”"
These posts brought out comments there, and throughout facebook & related sites about these people being moderates and RINO's. Pause and just let that sink in for effect, John Burns, Dana Loesch, Jim Durbin & Bill Hennessy as moderate RINO's... if you know anything about any of them and that doesn't make you laugh at ROFLOL strength, you're funny bone has quite possibly become cancerous.

What's worse, and more to the point, is they, and those who supported their positions, Dana Loesch for one (and yep, me too, just your average moderate RINO - SNORT!), are being used as opportunities by their critics to make these grand sounding statements,
"I won't vote for anyone who's less than 100% conservative! That's how we lose our movement! same old b.s. that the Republicans must be moderate and compromising with the Dems which by the way is what lost the congress to the dems in the first place..." and my personal favorite "... this negative ‘do it for the good of the party’ lecturing is starting to sound an awful lot like another frequently echoed mantra..“Everyone Must Sacrifice For the Greater Good”... or "You guys all have it backwards. And I can't tell why you are doing it. Bad strategy or strategy. Rinos confuse me..."

These statements are made while puffing their feathers out, as if they've just made an admirable declaration of Conservative Principles, then they preen a moment and bask in their own pure glow, and then sneer at anyone who questions the wisdom of what they're saying as being moderates and RINO's.

What's blatantly on display here, and symptomatic of the very issue they think to criticize, is an absence of context and inability to reason with prudence. Context has been an item in the news lately, as a result of Breitebart's NAACP video, and it's often noted now that when you drop the context - either from the narrow particulars of the issue involved, as was partially done in regards to Sherrod (the joke is that within the full text of her speech, the was much said that was far worse than the feeble implications of her 'turning point story'), or from the real point of Breitbart's video, not the narrow focus upon Sherrod herself, but the approving responses of the NAACP crowd attending to her speech.

Context must be taken into context
Even Context must be taken into context - or else you risk dropping it altogether!

So, lets look for the context that these faux-principled preeners are dropping. Let me give an example of similar statements and actions that were given, properly, in a very different context, when I, and many others, did and said seemingly the exact thing these folks are advocating, but which in that context, was a proper, well reasoned position to take.

In '92 we still had a relatively rational world (in comparison to that of today), the communists were openly in the governments the USSR, not the USA, etc, and so when Bush 41 broke his "Read my lips: no new taxes!" pledge, I and many others, refused to vote for him or his RINO supporters in the next election. As a result, Bush lost, and a large number of RINO's were purged from congress.

Because we did, a newly galvanized conservative base insisted upon, and very soon got, the "Contract With America" and the 'Republican Revolution', which among many other things, shut down welfare, HillaryCare and in general managed to stave off the proregressive socialistic assault for almost 20 years.

There was, however, a counter balance to that surge of course, in consequence of it we also got 8 yrs of Clinton, and I don't think most people realize how damaging it was, legislatively and morally, to the nation and to our understanding of who we are - but even so, on balance, much was accomplished which I don't think could have even have been hoped for, if Bush 41 had won the election, rather than Clinton.

The point is, that you've got to look at the full wide-angle lens picture and realize that it is highly unlikely that you'll ever get the luxury of having a clear choice between Good and Bad situations or perfect and botched candidates; far more often than not we are presented with a situation where we only have the choices of 'not so good', 'worse' and 'much worse', and we must make the effort to realize that that situation doesn't exist in a vacuum, separated from the rest of the world, we have to remember to evaluate not only the immediate goal, but the lesser and later implications of that situation as well, which will soon, in all probability, come to the fore and become the primary issues to be dealt with.

In '92, it was a reasonable risk to allow the Presidency to be lost, in order to galvanize the like minded and make a strategic gain in the mid-term elections. Clinton, foul as he was, was a Democrat, not a full blown proregressive leftist, and we were also not faced with a full democratic congress and president whose leadership and advisory teams are openly admiring of socialistic, and even communist, leaders and 'principles', armed to the teeth against us with new thousands of pages of (unread) legislation in place which, if not repealed, could conceivable mean that our remaining constitutional liberties will be lost... for a very long time.

Then And Now
But as well as that earlier strategy played out (there was far more than Welfare that was stopped in the following years Gingrich years, it's worth going back and looking at what the 'Contract With America' accomplished not only legislatively, but in the rules which congress and it's committees operate by), it would be foolish to forget that we also lost important ground (literally in some cases, Utah lost millions of acres of statehood to the Fed Govt, because of Clinton's actions), due to our principled stand then.

The gamble was that for the loss of short term gains, we'd make some more valuable long term gains, and that given the then current climate and foreseeable future from the vantage point of 1992, it was worth the gamble, and on balance I think it did prove worthwhile.

In 2000 I did not vote for Bush 43 in the primaries, it was obvious to me that he was what he proved to be, a moderate, and in some areas a progressive leaning candidate, I feared he'd be a disastrous choice (and his Medicare Prescription bill, Amnesty, and disastrous bailout approving measures bore me out), but come the election, between him and the greenie meanie algore... good God, there was no choice whatsoever.

2004 was another year of a same issue, but between the moderate progressive Bush, and the vacuous leftie Kerry (can you imagine if John Edwards had been even close to having power?!), I simply could not sit that one out.

2008, again, the exact same issue came around, but this time deciding to 'stand on principle' was a suicidal venture. I personally had many times over stated that I would never vote for the proregressive, little 'r' republican McCain, that Teddy Roosevelt progressive in conservatives clothing... but in the context of choosing between McCain, and Obamao, it would have been, and I think has proved to be, suicidal to have chosen to sit out the election, rather than forcing yourself to swallow hard, hold the nose, and vote for McCain.

Because so many so-called 'conservatives' took their bumper-sticker 'principled' stand - without consideration for the full context of the issues and realities involved ... they literally left us to our present fate.

In the climate of 1992, it made sense to stand on principle and sit out the election or to vote for a 3rd party, but that was not the situation in 2008, and it is most certainly not our climate today.

And it is also important to note that the bumper-sticker faux principled stand was NOT the right stand to take in 1992, taking it only happened to not produce a wrong result - that is a far cry from being the right thing to do. It's akin to saying that putting on a blindfold, spinning yourself around and then 'choosing' between a glass of arsenic and a glass of wine - if you happened to select the wine... it's lucky you didn't pick the wrong glass, but I'd hardly call that a correct Choice!

The context, and the method of reasoning you use in making your choice, is as important as the actual choice that is made.

We simply cannot afford to sacrifice a broad midterm election today (though there may still be some isolated instances where it might make sense to, the earlier NY 92 with the Scozzafava scenario comes to mind), in order to make a point for a future election - that is a myopic, and IMHO, a foolish, meaningless, effort, made more with your own puffed up self regard in mind, rather than the real good of the nation. For the same reasons, it was a wise move to campaign in that NY 92, even though whatshisname lost, AND it was right to do so for Scott Brown earlier this year (and really, anyone who didn't realize he was a RINO, and that he would perform just as he has, wasn't paying attention - but in the context of that election and the looming healthcontrol vote, it was clearly the better choice, in Massachusetts, between a poor candidate and a worse one), for those very same reasons, it is a wise move today to look less at the blustery (and self defeating) faux 'statement of principle', and look at the wider context and Prudent, choice.

As Bill Hennessy noted above,
"Always support the rightward-most, viable candidate..."
, any candidate, and believe me, it galls me to say it, but ANY candidate today, that is less left than the leftist candidate, is worth your voting for, and is worth your making an effort to get others to vote for them as well.

BUT!
DO NOT LOSE SIGHT OF THE WIDER CONTEXT AND LONGER RANGE GOAL!

Because it is wiser to hold our nose and vote, and to work for, a lesser quality candidate now, DOES NOT mean that we stop or pull back in our efforts to lay the ground work for the more perfect candidate in future elections. It does not mean that we accept, as a matter of course the idea that we have to 'Go along to get along', or that we (choking back vomit) "Must be more bipartisan". It does not mean that we stop letting those in the various legislatures and levels of political machinery know that we are STILL GODDAMN PISSED OFF and are coming for them, that their moderate RINO butts are being targeted, and when the ammo is available, they will be fired - when it benefits US, our real Rights, and the interests of the Nation, to do so.

Our modern system of education has nearly eradicated all knowledge and comprehension of the virtue of Prudence - I'd suggest that we all pull out our Aristotle ('Practical Wisdom' is how it's often translated in Aristotle) and Aquinas and study it well - make no mistake, without it, the Republic will be lost (and BTW, Prudence held big time sway with the Founding Father's generation... go ahead... have a look at what they had to say) - it doesn't mean the finger wagging, temporizing of Dana Carvey's Bush 41 "wouldn't be pruuudent!", it is a vital Virtue, perhaps most important of the Cardinal Virtues, and absolutely key to the process of reasoning.

Bumper-Sticker 'Principles' Simply Wouldn't Be Prudent
In reality, the faux principled stand, is just another instance of top down thinking, more suitable to proregressivism, than to what we typically call conservatism, or more correctly, Classical Liberalism. Principles are tools of thinking, not mindless statements to help you escape the effort of thought.

Making a supposed stand for 'Principle', in the absence of the wider context, divorces that stand from any claim to Principle. Principles are not some fixed statements, Kantian imperative that can be applied in any and every context without thought - to do so is just an excuse to avoid thinking - and insisting that they be taken as such has been a tool of the left to destroy the very idea of being principled! As I noted a couple years back,
"...Kant then enforces his fantasy worlds through the Categorical Imperative, which is supposed to be a statement of ethical conduct that will be true in all situations – regardless of context. This is a typical example of what comes from Elites who not only distrust peoples ability to act morally, but fear their ability to judge for themselves. Typical of Listicism (the attempt to substitute “To-Do Lists” for active thought), is it's intent to make thought unnecessary and judgment replaced.

It is interesting to note that his own categorical imperative “Never Lie” is in direct opposition to “I have found it necessary to deny knowledge, in order to make room for faith.” – or do you think such categorical statements allow for little white lies of omission? Nah.."
To be Principled, requires a clear awareness of the facts involved, and as much as is possible (and wise), the facts which make those facts possible - or in other words, the Context, and then carefully reasoning with that principle, and actively applying the principle to the full context of the issue, in order to come up with a prudent, principled, response. Any claim to being principled, that isn't also Prudent and integrated into the full context of the decision, is NOT a principled action, just a shallow aping of principle.

In 1992, given the full context of the times, it was a principled stand to vote against Bush 41, and because many of us did so, we got the Contract with America, and set the socialist agenda back almost 20 years.

Today is nothing like 1992, it would be a betrayal of principle, and of the Republic, to sit this election out, or any of the foreseeable elections, because the available candidate (or 'rival' Tea Party group) doesn't meet a perfect 'principled' litmus test.

If we're going to prevail, we're going to have to think, and that means going beyond a bumper sticker grasp of the principles this nation was founded upon. If you trully want to stand for Principle, and see those principles followed by others, you'd damned well better be out there beating the bushes to get your message across and understood - and I don't mean just at election time - elections come at the end of the political process. Do so now, and next month, and next year, especially if you know that your views are in the minority. To simply stand in the way, shouting 'Stop!", chest puffed up, and congratulating yourself on 'standing for principle!' is foolish at best, and such posturing for 'principles' displays no comprehension of what they mean or entail.

I do understand the sentiment of the preeners, I don't like the moderates and RINO's, or those who seem to propose compromise as a valued end, rather than a, at times, grudgingly necessary means. For instance, I'm not a fan of Newt Gingrich as a candidate, because he is, it seems to me, oriented around Gov't being a useful tool to solve problems, rather than what it should in any active sense be, a dangerous tool used to defuse specific obstacles to the exercise of individual rights, protecting property rights and securing the Rule of Law. Newt, for instance, would happily involve govt in the system of healthcare, involve it is putting govt initative's behind efforts to modernize the healthcare system and developing electronic records standards - good God! (Anyone out there ever been involved in any Gov't electronic 'standards'? Ever try to decipher HIPAA standards for use in a large IT System?!) But he is obviously an intelligent man, has done much for this nation, and if he were to win the primaries, and if the climate is anything like today, I might find myself in a position again where I'd need to hold my nose, as I did for McCain, and vote for him... but given a different climate, one more like 1992 for instance, I'd eagerly send him packing pronto.

The context matters, context is King, and to forget that is to hamstring your mind, and far from 'standing for Principles and Freedom!', you're far more likely to bring about a hyper pragmatic tyranny.

In short: Think first, then "... support the rightward-most, viable candidate.”"

Sunday, July 04, 2010

A Defence of Liberty for the Fourth of July


I’m only half way through Justice Clarence Thomas’s concuring opinion in the recent 2nd amendment case "M c DONALD et al. v . CITY OF CHICAGO, ILLINOIS", but from what I’ve read so far, it’s an excellent defense of the Constitution itself, and our ability to understand and apply it. I thought that since it formulates a defense of our 2nd Amendments rights, it’s particularly well suited for consideration on this day, the Fourth of July, when the people of the United States of America first declared their independence from the control of tyrants.

Truth be told, I also didn't mind that he makes mention of he importance of the Slaughter-Houses cases, and Lochner v New York, which I cited here, regarding their importance in diminishing the understanding of our rights and distancing us from being able to count on a sound constitutional defense for our liberties.

Once again Thomas shows himself to be a far better judicial mind than either of the more renowned (and timid) 'originalists' Scalia, Roberts or Alito, are.

Justice Thomas is the only one who ventures to state what it seems that the other conservative Justices suspect to be true, but aren't willing or able to support, that the sleight of hand that has with over a hundred years of creaking precedent, attached to the magical 'due process' clause, along with willfully anemic interpretations of the 'Privileges and Immunities' clause of the 14th amendment, are simply excuses for rationalizing desired pet results out of the constitution, while it is the full understanding of the Privileges and Immunities clause, that is the only proper conduit for the Federal Bill of Rights to be applied down to and within the individual states, and is the only method which won't also lead to an erosion of the powers of the states.

With his practice of reviewing and citing actual historical understanding (rather than just statements and actions) and the facts as they were known at the time, he slams home over and over again, that the proper basis for someone to gain an understanding of the Constitution, is through an understanding of the philosophy of Natural Law, as the Classical Liberal Founding Fathers did, and it is folly to presume that someone will be able to properly defend it and apply its timeless principles, without such an understanding. For instance,

“...It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison , 1 Cranch 137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.

The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller , 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague , 282 U. S. 716, 731 (1931) ). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at ___ (slip op., at 3).

A

1

At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner.

See, e.g. , Magill v. Brown , 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id. , at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id. , at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”). 2

The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “ residuum of natural liberty,” and “civil privileges” as those “which society has engaged to provide, in lieu of the natural liberties so given up by individuals” (footnote omitted)); id. , at *468 (stating that a corporate charter enables a corporation to “establish rules and orders” that serve as “the privileges and immunities . . . of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g. , Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co. , 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “ ‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’ ”); Hathorn v. Calef , 53 Me. 471, 483–484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms).
2

The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship.

This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter Schwartz). ”

That fact is on clear display by the more doctrinaire 'originalists' who are continually left flatfooted and still trying to prime their time machine of original intent asking WWFD (What Would the Founders Do?!), instead of ‘What does this concept mean?’. Thomas doesn't bother with transparent claims of having divined the Founding Father's 'original intent', and he isn't diverted by narrowly selected phrases whose meanings are then used as tools of equivocation - by both sides of the aisle - instead he goes back to original sources, not to show how they had felt about similar situations, but to show what concepts were understood to apply to the phrases, and the context they were used within, which also shows the patently empty nature of the commonly 'understood' meanings of those phrases. Here's a good example of that in action, picking up where he's looking at the earlier meaning of the Bill of Rights applying to Federal legislation, and not to the states (in this case also a 2nd amendment issue),



"... As the Court explains, if this case were litigated before the Fourteenth Amendment ’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id. , at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id. , at 248–250; see Lessee of Livingston v. Moore , 7 Pet. 469, 551–552 (1833) (reaffirming Barron ’s holding); Permoli v. Municipality No. 1 of New Orleans , 3 How. 589, 609–610 (1845) (same).

Nearly three decades after Barron , the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g. , 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent . I say this is the leading principle—the sheet anchor of American republicanism. . . . Now the relation of masters and slaves is, pro tanto , a total violation of this principle”).

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 of the Fourteenth Amendment , significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford , 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id. , at 405–406.

The meaning of §1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights— i.e. , privileges or immunities—attributable to that status.

This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases , 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment ’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id. , at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id. , at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.

Chief among those cases is United States v. Cruikshank , 92 U. S. 542 (1876) . There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id. , at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment —its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. 1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe , 526 U. S. 489, 503 (1999) , that are not readily described as essential to liberty.

As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of §1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g. , Hurtado v. California , 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow , 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey , 211 U. S. 78 (1908) (privilege against self-incrimination).

That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within §1’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g. , Benton v. Maryland , 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g. , Gitlow v. New York , 268 U. S. 652, 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697, 707 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g. , Betts v. Brady , 316 U. S. 455, 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante , at 17–18 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante , at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define.

While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (plurality opinion) (quoting Glucksberg , 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas , 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905) ; Roe v. Wade , 410 U. S. 113 (1973) ; Lawrence , supra .

All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 ( STEVENS, J., dissenting); see post , at 6–8 ( BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 ( BREYER, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (STEVENS, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence , supra , at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
If you are concerned with the status of the Constitution, and of how to defend it and our rights, Justice Thomas's opinion is one that is well worth your time to read.

Hope you all enjoyed a Happy Fourth of July!

Thursday, July 01, 2010

Elena Kagan: Redistribution of Speech - Spreading the Silence Around

We've seen (heard) the video's of her arguing before the SCOTUS for a law that would effectively allow the banning of books (if not, see below), but not to worry, they wouldn't actually do it (!), but this one may be worse, because it was her idea which she wrote and published, and presumably believes in. She wrote a wackademic article in the '90's, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” (that title alone gives me the Orwellian creeps, some highlights from it are here), that introduced some new 'figures of speech' which ought to scare the bejeezus out of everyone, Left, Right and Center, including my favorite,
"redistribution of speech opportunities."
She doesn't make the mistake of actually advocating such a thing, she merely 'raises consciousness' regarding the issue (which she introduced) - typical wackademic passive voice tactics.

The rationale for it is that 'loud voices shouldn't be allowed to drown out other viewpoints' - which is all the license any enterprising regulator worth their salt should need to spread the silence around. Why would they? Because they are in the business of Power - growing, tending and harvesting power - that is what they do, and this new concept would produce a banner crop of power berries, let me tell you.

Couple this paper, with her argument before the SCOTUS, the gist of which is here between :16 & 2:41on the video,

Kagan: The gov't view is that although 441b does cover full length books, that there would be a quite good as applied challenge applied to any attempt to apply 441b in that context, and I should say that the FCC has Never applied 441b in that context, so for 60 years a book has Never been an issue.
Scalia: "What about the overbreadth doctrine?... If it's overbroad, it's invalid, what happened to that?"
Kagan: I don't think that it would be substantially overbroad justice scalia if I tell you that the FEC has never applied this statute to a book, to say that it doesn't apply to books is to take off essentially nothing.
Roberts: We don't put our first amendment rights in the hands of FEC bureaucrats. ...
Kagan: There has never been an enforcement action for books, nobody has ever suggested, nobody in congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that it would be a good as applied challenge with respect to that.
Scalia: So, you're a lawyer, advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this, this statute covers it, but don't worry, the FEC has never done it. Is that going to comfort your client? I don't think so."
If you can't see the writing on the wall... it may be because you're ability to comprehend it has already been redistributed. And for those of you wanting to give her 'a fair shake', sorry, but I've already been shook.
video