Tuesday, March 30, 2010


The value of any tool must be measured against the results that can be achieved by using it; that is, whether and to what degree it successfully achieves the ends for which it was designed.

Whatever anyone might believe about it, our Constitution is not an instrument of divine institution. Those who participated in its construction would be the first to say that they were not men working under the inspiration of the Holy Spirit.

Rather, the task about which they set themselves was nothing more nor less than the invention of a tool—imperfect and of human origin—with which they could strive for and hopefully achieve certain purely natural and material ends.

The questions, then, must be “What did the founders intend for this tool to achieve?” “For what purpose was it designed?” And, “has this tool made possible the realization of their goals?”

So what did the founders intend? Did they intend to safeguard, absolutely, the sovereignty of the several states over a strong Federal government? If they didn’t intend the sovereignty of the several states to be absolute but instead intended it to be held within certain clearly defined limits, what did they intend those limits to be?

I think it crystal clear that, whatever else were the specific intentions of the particular individuals who drafted, approved, signed their names to, and ultimately voted on the Constitution of the United States of America, they certainly intended to create a strong federal government whose power would be held within certain strictly defined limits. Our Constitution sets up a Federal Government of enumerated powers: those powers not enumerated were famously reserved to the States or to the people.

However, it is also clear that among those enumerated powers was the power to raise armies and navies and to levy taxes for their support as well as the right and privilege, reserved to the Federal Government, to coin currency, and to regulate commerce among the several states, etc.

These powers are so broad—and have been made broader by subsequent Amendments and interpretations by the Supreme Court—that the intent made manifest through the enumeration of these powers effectively cancels out the intent of maintaining a more or less high degree of state sovereignty.

The wording of the 2nd Amendment tells volumes about the intention of strong state rights: A well regulated Militia, being necessary to the security of a free state…etc.

Much has been argued in recent years but the focus has been on almost everything except those words, “the security of a free state”. To what do those words refer? What is the “free state” in question? I propose that, given the fact that the Second Amendment specifically bars the Federal Government from making any law that would infringe upon the right of the people to keep and bear arms, the intention must be to safeguard the “freedom” of the “states” from the Federal Government.

However, the Federal Government’s power to regulate commerce among the states had the unintended effect of subverting the freedom of the states more drastically than gun laws ever could have. And, in fact, the reality is that the founders, in securing to the people the right to bear arms in anticipation of Federal overreach (if that was their intention), while effectively stripping from the states the power to regulate their own commerce (all commerce having since been defined by the Federal Government as “interstate”) means that they in fact succeeded in removing sovereignty from the states—states filled with gun-wielding patriots jealous of their sovereignty. And the only remedies to this sorry state of affairs are to either change the Constitution (an eventuality the founders had the wisdom to foresee) or to use those guns to defend state sovereignty from a supposedly “overreaching” Federal Government. As to the second possibility, that’s already been tried and failed. And rebellion, in order to be legitimate, must of necessity be far graver reasons of unjustice than --that is, Just War--besides, the Federal Government would have to go much, much further than merely overstepping its Consitutional bounds in matters ofcontinues to act within the bounds of its enumerated powers, there could be no cause to take so awful a step.

Anyway, as it stands, the Government has not yet overreached. That the Federal Government, in the conduct and performance of its enumerated powers, actually encroaches upon and nullifies state sovereignty is not the fault of the Federal Government or even those elected officials who serve within its ranks. It’s clearly the fault of our Constitution.

The problem was that our founders wanted to have it both ways and this, I hope, is a lesson for Europe. One cannot have a single economic zone while at the same time maintaining state sovereignty as we’re used to understanding it. One or the other must give way. Either we have government vested with the power to regulate commerce among the states or we have a Federal Government hobbled before the assertion of state’s rights. We cannot have both.

Our Constitution—perhaps any Constitution—is a tool inadequate to so lofty a design.

Recognizing the incompatibility of State’s Rights with a single economic zone, what we must do in order to safeguard our remaining freedoms is to focus on those freedoms which have little or nothing to do with economic activity. Chief among these must be the right to freely practice our religion and educate our children according to our beliefs. This may put some children on an unequal footing but that, I’m afraid, is a necessary sacrifice to freedom.

Freedom says nothing about equality and, in fact, may often be opposed to it. If I am free to believe what I like I’m free to esteem some things above others. I may be free to have prejudices. I may be free to recognize differences that tend towards unequal treatment.

A government may have a perfectly legitimate obligation to right injustices against equality but that obligation can only be, by the very broadest stretch of the imagination, construed to be within the sphere of economic activity or national defense.

And at the same time, a government which sees righting the wrongs of social injustice as its object must at some point begin to trample on the legitimate freedoms of its citizens.

A country that sacrifices freedom at the altar of equality will find it has neither freedom nor equality.

Thursday, March 25, 2010

Question for Debate

(originally sent to SDA and RMF 9/12/08)

I found myself wondering, if a man is convicted of a triple homicide (for example) that he didn’t commit, is life without the possibility of parole a lesser or a greater punishment than death? Or, put more generally, is the permanent detainment of an innocent individual more lawful or less lawful than the execution of that same individual? Of course I’m assuming the man in question had a fair trial and was just unfortunate, a case of being at the wrong place at the wrong time, and not that he was deliberately railroaded.

I know the argument will be made that, in the case of a life sentence imposed upon an innocent individual, the possibility exists that his innocence will be found out and that he will go free making the punishment possibly less severe—certainly less intractable.

However, all punishment is intractable—at least the part already inflicted—and there’s no way to give a man back the years he lost in prison any more than we can give a man back his life. And so, to make the point I’m getting at clearer, let’s say we have two men, both convicted of a murder that neither one committed, one was sentenced to life and the other to death, and that the one man has died in prison and the other has died in the chair. We have just learned of each man’s innocence but both men are dead. Their punishments are utterly intractable. In such a case, to which man has the government committed the greater injustice? Is it more wrong to deprive an innocent person of his liberty or his life?

Now, whether a government has the legitimate right or authority to deprive a man of his life or liberty may be the fuel for another debate. I would suggest, based on our Constitution, that OUR government unequivocally does claim for itself that right provided it does not do so “without due process of law”.

However, extraordinary circumstances excepted, the right and authority of a government to deprive a man of his life or liberty does not translate to the private individual acting on his or her own authority.

The slavery that existed in the United States of America prior to the Civil War is almost universally recognized today as a great moral evil. It was not so universally recognized at the time when our laws recognized its legality. (Neither did its legality prove its morality.)

Proponents of slavery rationalized their right to deprive other people of their liberty by concluding that the enslaved weren’t really people or were a lower sort of people.

Likewise, proponents of abortion rationalize their right to deprive other people of their life in just the same way. Either the fetus has not attained to personhood or the fetus is a person whose life is less valuable than those making the decision to terminate its life.

The vast majority of us who are alive today would agree with the essential abolitionist position which is that slavery was not something to be tolerated or compromised with. It was a great moral evil. Moral evils must not be contained but confronted. They must be recognized and not ignored.

Lincoln recognized this when he confronted American Slavery and Reagan recognized this when he confronted Soviet Communism.

And so I get back to my original question, is it more wrong to deprive an innocent person of his liberty or his life. Opponents of capital punishment will say the latter without hesitation. How then can they be in favor of abortion unless by diminishing the personhood of the one aborted?

As for those who recognize true personhood in the one aborted, how can the compromise pragmatic approach be warranted unless it would also have been warranted with regards to slavery?