We Should Be Thinking Instead of Following ... Blindly



Should Our Law Depend On Our Founders' Intentions Or Judge's Morals?


The Advocate By Herb Denenberg

The Bulletin Thursday, March 26, 2009


I never imagined I’d be writing this line — tyranny is on the march in the U.S. When you have the exploding expansion of government and an accompanying growth of regulation and taxation, you are sounding the death knell of American liberty and going down the road to tyranny for two reasons:

• First, as government expands, liberty contracts. History demonstrates as government expands, it squeezes out private enterprise and free markets. That spells the beginning of the end of our capitalist system and the rise of a government-dominated economy and society. When that starts happening, with the leadership that we have now that views government as the answer, you know what’s on the way. You are almost certain to find government metastasizing in an endless cycle of expansion that gradually crowds out and kills free markets, free enterprise and the private sector.

• Second, when budgets, deficits and national debt expands without restraint, and when suddenly fiscal matters are described in terms of trillions rather than billions, you have a trajectory that is unsustainable.  According to Barack Obama’s spending path, the interest on the national debt by 2019 alone will be $806 billion — more than what will be spent on national defense. Our national debt is on a path to reach $10 trillion, an unsustainable amount.

With that kind of crippling debt and deficits, we will not be able to sustain a vibrant, productive economy that can support the military establishment we need in a dangerous world. The government-controlled and -centered economy will not be able to support a military establishment. In fact, we will not be able to sustain the standard of living we now enjoy. Remember the Obama administration is using fear tactics to justify government expansion and spending unprecedented in our history. On top of that, the Obama administration seems to botch every government program it has tried to manage, so the expanding government will deliver a double whammy to America’s strength. Governments, like corporations and people, eventually encounter disaster when they spend way beyond their means. Sen. Judd Gregg, R-N.H., points out that Mr. Obama is spending more than our previous presidents put together.

There are other developments that also raise the specter of tyranny.  Consider the bus trips to bring demonstrators to the homes of AIG executives who received bonuses. The bus trips have been arranged by ACORN, the group that has a long history with Mr. Obama. It was one of his first employers and it also worked with his campaign. It was also a beneficiary of the stimulus bill. It is known for voter fraud and intimidation of banks and lending institutions to make them lend money to low-income people, part of the scenario that led to our financial meltdown.

The bus trips to homes of AIG executives seems to be part of an intimidation approach taken by ACORN in other contexts. It is mob rule, but of the worst kind, as it is fired up and encouraged by those in government. These kind of tactics have been encouraged by President Obama and others who have whipped the public into hysteria over the AIG bonus payments. This is outrageous as the Obama administration was not only long aware of the AIG bonuses, but also actually legalized and sanctioned those bonuses by the stimulus package, which was proposed by the Obama administration and backed in every way by the Obama administration.

There has also been a burst of power grabs by the Obama administration. It wants the authority to seize financial institutions (other than banks) and sell off their assets, rewrite their contracts and take other interventions. Some legal experts have already said this would be an unconstitutional power-grab. Critics also say it is bad economic policy.  The Democrats are also talking about regulating the pay of financial executives, even those who don’t take bailouts.

This is just a small sample of the Obama administration’s gyrations that hit me with special force as I read Mark R. Levin’s new book, Liberty and Tyranny: A Conservative Manifesto. I just reviewed this book in my last column, but decided to go back to it in this column, as it is powerful in the case it makes, but is also prophetic as to what has been going on since it was written.

Mr. Levin’s book is a classic statement of conservative values, but also a classic statement of what has to be done to reverse the Obama march to tyranny. Mr. Levin is a host of one of the leading conservative talk shows and is also a constitutional lawyer and president of the Landmark Legal Foundation. He is a Philadelphian, who graduated from Temple University and its law school.

One of the most important chapters in the book is on the Constitution, which of course is at the heart of most of our debates about the role of government. Mr. Levin makes an ironclad case in favor of the originalist approach to Constitutional interpretation, which holds the Constitution should be interpreted in accordance with the original intent of the Founders. That is the conservative approach.

The Democratic and liberal approach rejects the originalist position and calls for viewing the Constitution as a living and breathing document, which should be interpreted with the lens of today’s conditions and values. The two views of interpretation produce results that can be poles apart.

Mr. Levin explains the two approaches in terms that everyone can understand, one of the special strengths of his writing:

“Language consists of words, words have ordinary and common meanings, and those meanings are communicated to others through the written and spoken word. When parties enter into voluntary arrangements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform, and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original meaning.

“The Conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that have the same meaning today as they did yesterday, and should tomorrow.”

The “living and breathing” of the Constitution calls for the use of the amendment process, not the willy-nilly pronouncements of judges anxious to implement their own agendas.

This originalist approach connects one generation to the next and restrains government from societal experimentation and government excesses. It is the only way to interpret the Constitution if it is to deliver the kind of stability and certainty of protection, which was at the heart of its very purpose.

Mr. Levin argues that the liberal/Democratic Party view of the Constitutional interpretation is ridiculous:

“If the Constitution’s meaning can be erased or rewritten, and the framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.”

One of the reasons that Mr. Levin’s argument for originalism is so powerful is that it is based on the views of the Founders. On this, he quotes James Madison, the “father” of the Constitution:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

He not only devastates the anti-originalists with his arguments and those of the Founders, but even more persuasively, he destroys their position with their own words. For example, when the late Associate Supreme Court Justice Thurgood Marshall was asked what his judicial philosophy was, he responded, “You do what you think is right and let the law catch up.” 

When the late Associate Justice Arthur Goldberg was asked for his approach, he responded that he determines “what is the just result.” In other words the anti-originalists decide cases by throwing out the Constitution and doing what they think is “right” or “just.”  Despite its noble sound, it is correctly described by Mr. Levin as a “license to arbitrary and lawless activism.”

The argument of the originalist can be carried to a second level: If the words and meaning of the Constitution can be manipulated by the anti-originalist, or what Mr. Levin calls the statists, how can their words and meanings be expected to deliver stability or demand respect?

As Mr. Levin puts it, “Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is ‘right’ or ‘just’ bind the individual if the individual believes the notion is wrong or unjust? Does not lawlessness beget lawlessness?”

In other words, the originalists and the conservatives say the Constitution is what the Founders put forth in their language and with their meanings. The anti-originalists and statists say the Constitution is whatever some judge says it is.

After destroying the position of the anti-originalists or statists, Mr. Levin shows how the implications of their position are destructive to our form of government and to the welfare of our people. If judges determine for society what is right and wrong, how can it be said that the judiciary is still coequal with the executive and legislative branch. This view destroys the Constitution’s creation of three co-equal branches.

What’s worse, the anti-originalists and statists see the judiciary as the “clearest path to amassing authority.” That’s because the judiciary can proclaim the law without challenge and without “concern with the fleeting outcome of an election cycle.” Furthermore, the judiciary is easiest to control, as it consists of only about 1,000 lawyers and the Supreme Court is made up of only nine.

Mr. Levin has an interesting discussion about President Franklin D. Roosevelt who started out as an originalist but ended up as a statist. His “Second Bill of Rights” was the beginning of that conversion. These were rights that delivered “security and prosperity.” For example, “The right to a useful and remunerative job in industries or shops or farms or mines of the Nation…”

Mr. Levin argues that all of these are not rights but the statist’s dream of a Utopia. He argues that to achieve this Utopia, the individual must surrender control of his fate to the government. He cites contemporary legal scholars who argue for a jurisprudence that embraces these ideas, and move toward “formal equality.” This judicial view may not be easy to see through, but it is what Mr. Levin calls “tyranny’s disguise.”

If in control, the anti-originalists and the statists can, if given judicial authority, act as an ongoing constitutional convention, “unilaterally amending the Constitution almost at will.”

Mr. Levin notes a majority of the Supreme Court, on occasion, have even justified the use of foreign law. Where does that take us?

“The arbitrary application of foreign law — which provides an activist justice with an infinite smorgasbord of legal options — is a rejection of the predicate for America’s governmental system. And it lasts as long as the next opinion.”

I’ve focused on the constitutional issue, because it shows how persuasively Mr. Levin makes the case that we have a choice between liberty and tyranny, and we are heading toward tyranny when we let judges dictate our law and what is right and wrong without regard to the executive or legislative branch, or the Constitution.

The Constitution is only one part of the picture — the liberals and the Democrats are rushing us down the road to tyranny. Mr. Levin’s book shows us how to stop that outcome and reassert and establish the sound values of conservatism, which are the same as the values of our Founders. Mr. Levin shows why we are in a battle for the survival of America and exactly what we have to do to win that battle. That is why this book is one of the most important of our times.

Herb Denenberg is a former Pennsylvania Insurance Commissioner, Pennsylvania Public Utility Commissioner, and professor at the Wharton School. He is a longtime Philadelphia journalist and  consumer advocate. He is also a member of the Institute of Medicine of the National Academy of the Sciences. His column appears daily in The Bulletin. You can reach him at advocate@thebulletin.us.

Josie06 Josie06
56-60, F
24 Responses Mar 26, 2009

As opposed to what Josie?<br />
" The single greatest threat to liberty is that the sword and the purse be in the same hand" Thomas Jefferson.<br />
So it looks like Mr. Jefferson saw "greatest threat" all over the place.

"One single ob<x>ject ... [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation." --Thomas Jefferson, letter to Edward Livingston, March 25, 1825

Federal judges take the following oaths, yes two of them:<br />
<br />
The first oath is this:[28 U.S.C. § 453]<br />
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I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.<br />
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The second oath that federal judges must take is this:[5 U.S.C. § 3331]<br />
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I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.<br />
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Nothing about balancing the needs of many. Nothing about empathy. Their job and their duty is to follow the law and Constitution as it is written. <br />
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Balancing the needs of the many, empathy and all the other 'warm-fuzzies' you want so much are the purview of the Legislature (State and Federal) in writing the laws. <br />
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We don't need to legislate from the bench ... it's called Separation of Powers for a reason. The legislature legislates, the courts interpret and the executive administers. <br />
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You're way off base on a Free Press. In your definition, your world, killing of our soldiers would be sanction by Freedom of the Press. Reasonable men and woen would not condone that.

Now, to return to the original post, the Constitution is a living document describing a world the founders wanted to exist.<br />
Original intent won't work, because the 'founders' wanted all sorts of things, like Federalist Alexander Hamilton wanted a King of America.<br />
So what is left?<br />
Literalism perhaps.<br />
The right of the of a free press shall not be infringed?<br />
So no more em<x>bedded journalists and no more restrictions on publishing real time war plans? That's what it SAYS after all.<br />
So, no, not literalism.<br />
How about textualism?<br />
The right of the people to be free in their persons, property, papers and effects from unreasonable search and seizure and no warrant shall issue save on probable cause ATTESTED BY A CITIZEN means no more high-speed chases, arrests unless the crime is visible to the officer, no more no-knock warrants, no more warrantless spying?<br />
So much for textualism.<br />
So what's left?<br />
The reasonable judgment of reasonable men and women, trying to balance the needs of the many (government) against the rights of the afflicted (victims of government).<br />
The morals of the judge, if you like.

I see that reality once again cannot penetrate your shell of delusions.<br />
ALL the disaster is due to Capitalist GREED, unrestrained.<br />
Check Paul Krugman, who spent 2003 - 2008 howling in the wilderness warning about the unregulated pseudobank industry that was certain to re-create the Japanese 1980 - 1993 disaster.<br />
Which, of course, everyone knew was coming.

bitlord ... wrong again on you. It's not just the Republicans. Both parties are to blame. Both parties have created this mess with their egalitarian supremacist outlooks on the population. In other words greedy politicians.<br />
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MitchAndMaureen, never said any thing about a libertarian society. Again you ASSUME and you assume wrong.

Wrong as always Josie.<br />
Runaway consumer spending due to debt commodification, brought on by DEREGULATION created by REPUBLICANS is what caused the boom and the crash.

A book will not prevent a thing'<br />
But the living word will'<br />
I have a relic key and I will make them listen or they will not have a thing to govern.

A book will not prevent a thing'<br />
But the living word will'<br />
I have a relic key and I will make them listen or they will not have a thing to govern.

Constantly rising consumer spending spurred by Congressional deregulation and forcing housing loans to individuals with no collateral or even income.<br />
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It was a bad decision based solely on politicians appeasing a group of monied interests (those that gave to their campaigns). Which amounts to social engineering. Bad reasoning got a bad result.<br />
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Corporations are not entirely without blame cause they skipped right along (with the threat of legal gov't retardation if they didn't) and never made a peep.<br />
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This bleed over to credit card debt too. it is a shame, 'Keeping Up With The Jones' has done us all in.<br />
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It couldn't work long ... and government could have mitigated or lessened the results if they desired to do so. They didn't.<br />
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Always remember 'a crisis is too good to waste'. Even a manufactured one.

Ah the reality. My problem with economics is the level of rationality they ascribe ot the individual. <br />
The fact is that so many of us are driven by the collective viewpoints that the basis of economic theory pedicated on individual appetites deosn't hold up. the curretn disaster was driven in part by economic growth based on constantly rising consumer spending fuelled by debt - how long could that work

For my choice ... Milton Friedman was the better economist.<br />
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Keynes may have been a brilliant scholar but saw nothing of the day-to-day real life of the economy as lives be the people. He was a patrician and believe he and those like him were the only ones with the answers.<br />
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Friedman saw the economy and the real day-to-day world.<br />
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i'll take Friedman's views any day. i may not go as far on all issues but he has a better grasp on the reality.

Jack Bauer should start with Congress.<br />
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The Patriot Act was a temporary fix to problems created, in the US, by likes of the Church Committee years ago and the Gorelick Wall (under Clinton) that ******** this country of essential needs in intelligence gathering.<br />
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A baseball bat wouldn't be big enough or strong enough. Maybe a steel one!

i have no problem with the way Jack Bauer does things. maybe if we did more of it terrorists would know we are not going to take their crap. They need to be reminded of the flag that says "don't tred on me".

We're a little out of sync here. Cos I'm responding to comments out of time but anyway.....<br />
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I think keynes or mr friedman are both in the **** on this one. A mixture of response is needed. As an individual who is getting screwed by all of this I want the government to sort it out. I would also like an our in a room with the bankers and a baseball bat.

My comment is towards grits post. J the patriot act is very similar to the anti terrorism acts in the uk. In all these cases I resent the fact that the threat to my country forces us to give up our liberties and to almost fulfil the self prophecy of the terrorists. Yes it's a high price to pay that we can't be Jack Bauer but have to abide by rules and structures that don't allow us to do what we wish. I guess I'm an idealist and it's as well that there's lots of hard heads like u guys around to make the difficult decisions.

Borrow and increase the money supply, print more ... devalue it in the process.<br />
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There is a lot of blame to go around ... however politicians, who rightfully garner a lot of it, defect it to others. Many times innocent others, like the families of the 'hated' executives.<br />
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The taxpayer can 'carry the can' if the government uses wise economic measures rather that penalizing them. Keynesian economics is not the answer. It digs a deeper hole from which a longer period will be needed to recover. <br />
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History shows us ... but we fail to listen.

Well the last administration is gone. They might only bear some of the blame but they have paid a price. Many bankers have lost their jobs, ok lots of hte top guys got away with good pensions and bonuses but in lots of cases they had accumulated rights for previous years work and it's difficult to penalise their entire careers. I have a problem with the bailout money used to honour the banks bonuses cos the massive bonuses got us into this mess. The most worrying thing is that the mess is so huge blaming someone doesn't matter and I'm not sure that anyone has a real clue how to get out of it. Finally, the taxpayer has to carry the can cos no-one else has any money. We can borrow to increase the money supply and if business gets back them we can recover from corporate tax but ultimately we always pay. Life's a ***** and then u die.

The privacy that was threatened was the privacy of terrorists.<br />
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It got a big hubub over here cause the ACLU and the Bush-hatters hated anything the President did. They fear government therefore they feared the Patriot Act.<br />
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The Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.<br />
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By the way it was passed by wide margins in both Houses of Congress. Yes, even Democrats voted for it.<br />
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It authorized:<br />
the indefinite detentions of immigrants - they are not citizens and therefore have no rights under the Constitution; <br />
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searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge - with a District Court Judges signature (like all warrants); <br />
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expanded use of National Security Letters, which allows the FBI to search telephone, e-mail, and financial records without a court order - for which one would have to be obtained eventually (it didn't remove the requirement totally);<br />
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expanded access of law enforcement agencies to business records, including library and financial records - good! How do you find criminals ... follow the money. <br />
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Yes, some Federal courts have ruled that a number of provisions are unconstitutional. As they have other Acts of Congress.<br />
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Also, many of the act's provisions were indeed set to sunset beginning December 31, 2005, approximately 4 years after its passage. In it's original passage.<br />
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Fear mongers desiring to defeat the ability of the government to fight an enemy. <br />
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i don't know about England/UK but in the US we have bankruptcy. A centuries old concept of business divesting itself and it's assets being bought up by others.<br />
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The government need not have jumped in with both feet so quickly. The government buying upwards of 80% of business is nationalization and is not necessary to correct the economy. It is a necessity only in government planning of economies and control production and investment.

I disagree with the buying of the toxic assets because it is the tax payers buying up these assets and they have nothing to do with any of this.<br />
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Even with the toxic assets being baught up it does not solve the real problem. Elected officials in bed with some powerful bankers. This is the problem and this is what has to be stopped. Taxpayers should not have to clean up a mess that elected officials and bankers made. The mess makers should be the ones to clean up their own mess. Even if it means I have to take public transpertation for a while until I can get a loan for a car.

Politicians will be politicians but the Patriot Act must have made a hell of a hole in the rights of the individual versus the state. I like o think that most of the people who enter into the game do so because they want to do something right for the country. The thing is the system demands people compromise, toe the party line and work within the resources available. I think the latest effort to buy up toxic debt is a good idea. I think government must intervene right now because the market adjustment will take too long. The evidence shows that unemployment is more difficult to reverse once it reaches 1 year. The market is the ultimate answer but short term fiscal policy might get us out of the hole so the market can start operating again.

stevester ... the regulation is necessary because of the Congress messing with it a decade ago and removing the safeguards that were in place. Yes, some is greedy corporations ... however a lot is a Congress that fiddles with good safeguards to ensure their pet projects and cause unwise decisions to be made.<br />
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It's not to early to complain. Words have meaning and actions have consequences. The last 8 years were nor 'bathed in glory' as you say ... however the next 4 or 8 years will be worse as the taking of Americans freedoms is worse in this Administrations first 60 days than 8 years of the last Administration.

I think it's a bit early to condemn this administration as heading towards tyranny as it hasn't reached 100 days yet. Also the regulation of capitalism by government t is an inevitable consequence of the rash actions of the financial authorities. The suggestion that lobby groups forced lending to low earners doesn't stack up with th need for bankers to carry out due diligence. the former administration reduced corporate governance to such an extent that banking institutions lost sight of their own values. The argument about the constitution is valid and as a UK person we have case law as the basis for all of our legal precedent. The rule of common law which defends the rights of the individual but within the context of the legislature is the basis in the UK and we have descended into tyranny. I would argue that the UK has greater individual freedom than the US, although EU law does threaten that imo. What ur saying appears to me to be an extreme version of the future. U don't mention the check and balances built into ur system, and in less than four years time u can change back, but let's face it the past 8 years have not bathed US in glory, have they?

we need a set of people voited into offfice that want and desire to go back to the original intent of the founders and put our country back on that path. Government is out of control and is going to be the down fall of our country if we do not do something about those who are in office now.