Let’s Ignore That Pesky Constitution

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Louis Michael Seidman, a professor of Constitutional Law at Georgetown (surprise!), doesn’t think much of the Constitution as he explains in an op-ed in the New York Times:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?       

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.       

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Of course we should still obey those parts of the Constitution that Professor Seidman likes:

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.       

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.       

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

Go here to read the rest.  Professor Seidman deserves an A for honesty just as he deserves an F for appreciation of what the Founding Fathers were attempting to do.  For many decades the Constitution has been mangled in order to move forward a liberal agenda.  This was usually done with a pretense that the Constitution was being interpreted rather than shredded, since it allowed the imposition of agendas that could not prevail at the ballot box.  With the reelection of Obama, Seidman thinks that it is past time to jettison the pretense and simply ignore the Constitution when it stands in the way of Leftist goals.  We live in increasingly dangerous times, and this op-ed of Seidman is a proposal that would strip from the Federal government all legitimacy since it is the Constitution, and only the Constitution, which binds Americans to obey it.  As Abraham Lincoln noted in 1859:  The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it.

50 Responses to Let’s Ignore That Pesky Constitution

  • “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.” John Adams

  • Phillip says:

    I remember a book about rewriting the Constitution coming out just after Obama’s first election. I didn’t read anything about it but I believe its premise was essentially that of Prof. Seidman.

    This of course is part of the long-term project of the Left. The Constitution stops their control of power. More of this to come for sure.

  • Art Deco says:

    The man reveals that he has no business teaching constitutional law, and, one might wager, never did.

    Legal security requires that positive law be respected. If you do not care for the positive law, advocate altering it through the mechanisms it provides. Does this occur to Prof. Seidman?

    Actually, though, we would probably be better off with a body of constitutional law enacted by statute (with interstitial case law) as they do in Israel and New Zealand than with the system we have now. As of now, any statutory enactment can be annulled by a set of tenured lawyers meeting in secret. The lawyers in question usually reflect the tastes and prejudices of the elite bar and the law professoriate and have a structurally antinomian world view, just like this character. Let’s ignore the whole thing and tell Prof. Seidman to get stuffed.

  • T. Shaw says:

    Necessity a.k.a. the common good is the alibi of all tyrants.

    From Instapundit: “I dunno. Does this mean we should ignore Roe? Or Miranda? And Baker v. Carr? And if the Constitution is this obsolete and “evil,” then maybe secession isn’t off the table after all? . . . .”

    “It’s beyond even that. Their entire authority comes from the Constitution, and is the only reason we aren’t entitled simply to ignore them, or hang them from a tree for their insolence. Take away that source of authority because you don’t like the constraints it involves, and you’re a lot closer to the tree. Those who think themselves above the law are not in a position to hide behind it.

    “MORE: On Facebook, Randy Barnett snarks: ‘I suppose this means the income tax could now be unconstitutional if we can just get 5 votes.’

    “MORE STILL: Reader Bill Bacon writes: ‘If, after all, the Constitution isn’t to be followed then doesn’t that mean we default to the Articles of Confederation? Don’t know about you, but I personally like the idea of having to get unanimous consent of the states to raise taxes….’ Heh.

    “Related: New York Sun: The Times Gives Up .’It will be illuminating to see how far the Times takes its latest lament, particularly because these days the Left generally seems to see the Constitution as a threat more to the liberal than the conservative cause.’ As I say, that’s an admission of sorts.”

    No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    The ruling class will support it. To the ruled class, “We know what is good for you, shut up!”

    From Marcus Lucanus, “Pharsallia”, “Here I abandoned peace and desecrated law; fortune it is you I follow. Farewell to treaties. From now on war is our judge!”

  • Art Deco says:

    No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    What is disconcerting is that the person sending up this trial balloon is a law professor – someone who argues for a living and teaches others to argue for a living. He does not seem to have thought this through. Neither has the editor of the op-ed page.

    The liberal arts college I know best had a provision in its faculty handbook which allowed the provost to dismiss a tenured professor whose medical or psychological condition prevented him from working. A septuagenarian philosophy professor abruptly retired in 1998 and the word on the street on that campus was that he was told he could retire or face dismissal under that clause. He had been manifesting peculiar behavior for about five years at that point. The Alzheimer’s diagnosis was made about a month after he taught his last class.

    The law dean at Georgetown needs to read the little used clauses in faculty contracts.

  • philip says:

    …but to overthrow the men who pervert it.”

    What then, when the perverted make up the leading body? When the perverted continue to vote the perverted in? What next?
    This Constitutional expert might want to step out of the cesspool and rinse off.

  • anzlyne says:

    I have mentioned Orestes Brownson and his ideas about Catholicism and America before in these comments. From:
    http://www.ewtn.com/library/HUMANITY/ZAMERDEM.HTM
    I get the understanding that the framers built better than they knew and that

    Brownson concluded that Americans think both falsely and detrimentally about liberty when they believe that the Constitution is their own creature to be manipulated at will. “

  • Greg Mockeridge says:

    The thing is that those who justify their activist ideas under the guise of the philosphy of a “living breathing” Constitution is that they don’t actually believe that the Constitution is living and breathing because every living organism grows in an organic manner. And their understanding of the Consitution is anything but that!

    Robert George wrote an interesting article about a decade ago on Lincoln and his concern about judical despotism:

    http://www.firstthings.com/article/2007/01/lincoln-on-judicial-despotism-16

  • DJ Hesselius says:

    I’ve heard it said that when it rains, the Angels are weeping. Beginning to think that for the past few years it has really been the Madisons (James and Dolly) and the rest of the Founding Fathers.

  • Michael Paterson-Seymour says:

    Jefferson wrote to Madison on September 6 1789: “it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. ”

    He goes on to argue that a right of amendment or repeal is not a satisfactory equivalent.

    Jefferson clearly embraced the concept of law as an expression of the general will.

  • Art Deco says:

    Jefferson clearly embraced the concept of law as an expression of the general will.

    Something of interest to Jefferson aficionados. Never been true in this country.

    The trouble we have had for about 60 years now is the belief that the law should be a function of the volonte generale of the appellate judiciary and their friends in the academy. Canada developed a particularly virulent case of this social disease when the country foolishly patriated its constitution with Pierre Trudeau’s repellant “Charter of Rights” appended. Figures in Israel’s judiciary would clearly like to seize this sort of discretion but are constrained by the capacity of the Knesset to put them out of business. The expression of this in Europe is not judicial misfeasance but the abuses of the European Commission, &c. The regime class is all over the occidental world and needs to be forcibly dispossessed.

    The political theorist Gottfried Dietze contended that the Anglophone world had seen repeated instances of what he referred to by the odd term ‘diffidatio’. He thought they occurred on cycles measured in centuries and that we were due for another. The baron’s mutiny which produced the Magna Carta, the revolt against Charles I, and the American Revolution were examples he offered of a social mechanism restoring ordered liberty. Our enemy in this country is not anything so discrete and forthright as an abusive crown. It is a whole social system whereby everything is put under the supervision of lawyers advised by the academy and the helping professions and justified by systemic mendacity (courtesy the bar, the academy and the dependents in the press corps).

  • Michael Paterson-Seymour says:

    Art Deco

    As Jefferson says, in pointing out thatt he power of repeal is not an equivalent:”But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

    It is worth also recalling his view on the September Massacres: “”Many guilty persons fell without the forms of trial, and with them some innocent. These I deplore as much as anybody. But—it was necessary to use the arm of the people, a machine not quite so blind as balls and bombs, but blind to a certain degree—was ever such a prize won with so little innocent blood?” If he believed that maintaining the constitution was “an act of force, not of right,” he was plainly not a man averse to the people asserting their rights.

    He was more of a Jacobin, than is commonly acknowledged.

  • MPS, I am no history buff, but what you said about Jefferson’s view of the September Massacres in the late summer of 1792 in France indicates that he believed the ends justified the means even though he deplored much of what happened in the means: the loss of innocent life. The Roman Church was severely persecuted during this period, principally because Pope Pius VI refused in 1791 to give support to a civil Cnstitution that attempted to re-organize the Church hierarchy based on the will of the “peepul.” Here is a link to his letter: http://www.ewtn.com/library/encyc/p6charit.htm. I do not understand how anyone could think the bloody violence of the French Revolution was a good thing. This is 1st Samuel chapter 8 taken to an extreme. And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

  • Art Deco says:

    MPS, Jefferson’s correspondence is just not that important. That was not how political institutions were structured in 1800 and that is not how they are structured today. If you are fascinated with Jefferson the person or with a history of controversies and currents of thought in the latter 18th c. anglosphere, I suppose his opinions are interesting.

  • Art Deco says:

    And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

    Cud-chewing indifference and the celebrity culture are much more of a problem among rank-and-file Americans than the formation of mobs. Look at the statistics on lynching over the period running from 1893 to about 1946. They tell a story of a declining propensity or capacity to engage in violent collective action. Where you see mobs and riot today, it is almost invariably in connection with public entertainments like sporting events, carnivals, and rock concerts.

    Our real problem is not with mobs, but with the social strata and occupational subcultures which fancy themselves our betters.

  • Michael Paterson-Seymour says:

    Paul W. Primavera & Art Deco

    I quote Jefferson, not because I agree with his views, but because Jefferson was far from being an unimportant figure in the American Revolution.

    His views on the Church are quite explicit: “This principle, that the earth belongs to the living and not to the dead, is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions, whether the nation may change the descent of lands holden in tail; whether they may change the appropriation of lands given anciently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity; whether they may abolish the charges and privileges attached on lands, including the whole catalogue, ecclesiastical and feudal; it goes to hereditary offices, authorities and jurisdictions, to hereditary orders, distinctions and appellations, to perpetual monopolies in commerce, the arts or sciences, with a long train of et ceteras”

    In that year of 1789, the theory that political power comes from those over whom it is exercised, and depends upon their will; that every authority not so constituted is illegitimate and precarious; that the past is more a warning than an example; that the earth belongs to those who are on it, not under it, was obviously current on both sides of the Atlantic.

    Hamilton, by the by, called the Constitution, “a frail and worthless fabric, and a temporary bond.” John Adam, an aristocrat at heart (which Jefferson was not) declared that “No Republic could ever last that had not a Senate deeply and strongly rooted, strong enough to bear up against all popular storms and passions. That as to trusting to a popular assembly for the preservation of our liberties, it was the merest chimera imaginable; they never had any rule of decision but their own will.”

  • Art Deco says:

    To the degree that his ideas have been incorporated and implemented by the left, unfortunately they are.

    I suspect that rather tends to exaggerate the erudition of working politicians and social policy wonks. However, you’re the intellectual historian, not me, and you have the Congressional staff post, so perhaps you can elaborate. Daniel Patrick Moynihan once said that in nearly twenty years in politics and government, he had never had a discussion of ideas. Have things changed? It is difficult to believe that Louise Slaughter (to take one example) would know Jefferson’s correspondence from a cheap romance novel.

  • Mary De Voe says:

    The Constitution affirms that the sovereign personhood of each and every individual citizen constitutes government and that government is the servant of the people. The Costitution also affirmes that there is a Supreme Sovereign Being (there can be only one Supreme Sovereign Being, as two preempt each other) WHOM sovereign persons must acknowledge in thanksgiving for Divine Providence. God, Whom we all must be free to worship, as only God has endowed unalienable rights, eternal truths that our founding fathers inscribed in our founding principles. As Justice Scalia states: Our Constitution has got us dead to rights. America is the only nation on the face of the earth that guarantees freedom, truth and Justice.

  • Mary De Voe says:

    Art Deco: “Jefferson clearly embraced the concept of law as an expression of the general will.”
    The law must bring us Justice and Truth, therefore, a majority of one in Truth and Justice that all persons might be free. E Pluribus Unum. Jefferson clearly embraced the concept of law as an expression of good will. Peace on earth to men of good will.

  • Darwin says:

    People often accuse the Right of being anti-intellectual. It’s hard to imagine a more anti-intellectual approach to law than:

    Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

    Simply staggering.

  • “Jefferson clearly embraced the concept of law as an expression of the general will.”

    Jefferson reject the authority of the Church and 2000 years of Sacred Tradition in having created his very own Bible:

    http://www.beliefnet.com/resourcelib/docs/62/The_Jefferson_Bible_The_Life__Morals_of_Jesus_of_Nazareth_1.html

    Would not such a person that believe that all rightful authority comes from the “peepul” and not from God?

    I do not denigrate Jefferson or his memory, and he certainly was a great man. Nevertheless, in being a man, he was sometimes (maybe oftimes) wrong.

  • Art Deco says:

    John Adam, an aristocrat at heart (which Jefferson was not)

    John Adams was an attorney living and working in the village of Braintree, Massachusetts. Thomas Jefferson was a country squire. Why is a member of the bourgeois and proto-urban sliver of colonial America an aristocrat at heart and a man occupying a position analagous to the British gentry something else?

  • Mary De Voe says:

    The Reign of Terror in France was nothing more than the Act of Supremacy in England, power run amok. Jefferson worked against the Reign of Terror coming to America after the Revolutionary War. Jefferson wanted something better for America. We had men of honor: George Washington who declined a crown to be king. Francis Marion, the Swamp Fox, who refuse to take vengeance and restitution against those who supported England duing the War of Independence, after the peace treaty was signed. It seems that our Reign of Terror came before and precipitated our Declaration of Independence. Our Amendments do not change the Constitution, but reinforce every right and freedom. If the Constitution must be amended let it be to make it stronger and more precise.

  • Mary De Voe says:

    Art Deco: “Mary, I have not read Jefferson’s letters. You are confounding my views with those of Michael Patterson-Seymour.” Yes, you are correct. The general will or the will of the people must be of a people of good will for the common good. Moving foward in good will. Do accept my apology.
    Mary

  • Anzlyne says:

    Discussing the various personalities and states of life of those founders is not as interesting to me as the philosophical understanding of what it means to have a constitution, where it came from and how it was possible. America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??
    In the article I submitted to you “The written constitution is merely legislative; only a people who are already constituted can lay down the law. An unwritten constitution is always the precondition for a written constitution, and it sets limits to what the written constitution can reasonably accomplish. “?

    In these comment boxes many are talking in effect, about the contract.
    I wonder if we no longer have the precondition to have such an agreement?

    “American founders had as “givens” the republican form of government from Rome, science and art from Greece, British political institutions and the Christian truth about the rights of human beings — “the rights of beings who are both part of and transcend by their natures a particular political community.” (Lawler) ?

  • Art Deco says:

    America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??

    There were 55 delegates to the convention in Philadelphia in 1787. Jefferson was not one of them. George Washington was there, Benjamin Franklin was there, Alexander Hamilton was there, James Madison was there, Elbridge Gerry was there. Adams and Jefferson were not.

  • anzlyne says:

    : ) of course you are right Art. I goofed – and I know better– but still asking whether or not we have the social underpinning for the Constitution.. as did the culture that was able to declare a Declaration and constitute a Constitution

  • Pinky says:

    I just keep looking over that editorial trying to articulate exactly what’s wrong with it, but there’s too much wrong with it. It is, simply put, completely wrong. There’s nothing you can point to and say “this is where his thinking went off the rails”. It was never anywhere near the rails.

    But just to keep myself from going nuts, let me spell this out. He says that Congress shouldn’t be bound by rules like the origination of spending bills from the House. But he also says that there should be two houses of Congress. Well, where is the list of rules that we should retain or ignore? What is the algorithm? If none exists, how are we to determine which rules are obsolete? He says that on the flexible points (without defining which ones are flexible), each party should have to make its case on the grounds of the political moment. Make the case to whom? It bothers him that, since Supreme Court decisions have been written from differing legal theories, a person can’t agree with them all. How are people going to come to agreement without any legal theories? Even if you want to call such an environment “law”, and I don’t see how you could, you could never call anything settled law, because there’s no means to settle anything.

    Art suggests that there’s mental illness involved. I think he’s right. And I know that a newspaper doesn’t necessarily endorse every opinion piece it publishes. But even if the professor has lost his mind, how can the NYT justify printing his editorial?

    The thing is, the author isn’t advocating for liberal policies. The only underlying ideology that could allow his approach is nihilism. That rules which has power to rule.

  • Paul Zummo says:

    Be most pleased if Dr. Zummo would publish an annotation and critique of form and content.

    Wait, now I’m being given homework?

    Just one correction for Art – don’t work for Congress, though I know plenty that do. You’re probably right about their understanding of political philosophy.

  • Paul Zummo says:

    To clarify my previous remark: I was referring to Congressmen, not the staff. If the people that I knew that worked for Congress were actually members – including the liberals – it would be a marked improvement.

  • T. Shaw says:

    Let’s ignore the pesky president. Let’s ignore the lousy laws. Let’s ignore the crass calumnies. Let’s ignore mealy-mouthed minions.

    From James Scott’s book, Two Cheers for Anarchy, quoted by Instapundit in late November 2012,

    “One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called ‘Irish Democracy,’ the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.”

    Let us become ungovernable.

    “To burst in twain the galling chain, and free our native land!”

  • Art Deco says:

    Wait, now I’m being given homework?

    I do not make assignments, but Tito Edwards lets you post. Anzlyne wants to know what you get in positive law if the cultural underpinnings which attended the original constitution are removed. Pierre Elliot Trudeau’s handiwork, promulgated in 1982, gives us a notion (all the more so because the man was Canada’s answer to John Edwards).

  • Mary De Voe says:

    Please let me clarify “good will”. If 99.9% of the will of the people voted for abortion, ssm, pornography, prostitution, and only 0.1% voted for the Right to Life, virtue, virginity and innocence, the 0.1% will of the people would become law, because this 0.1% has maintained their sovereign personhood in truth to constitute the government. It is the duty of government to protect and defend the good of the people as man is created in virginity and innocence. Corruption does not have freedom of speech, press or assembly. Only truth has freedom. Vice may not be validated. Crime may not be legalized. Only 0.1% of the people may constitute government, the rest have become outlaws and separated themselves from the truth.
    Informed sexual consent begins at emancipation, eighteen years of age. Yet, Justice Ruth Bader Ginsberg has advocated informed sexual consent for girls of fourteen years of age in her book. Of course, the Legislature passed the fourteen years of age as informed consent behind closed doors on Christmas Eve, legalizing rape and prostitution. When the people learned of it, the Legislature moved the age to sixteen and cheated all the young out of two years of security and the rest of the people out of our right to the truth and the blessings of Liberty. The newly begotten sovereign person endowed with unalienable rights by our Creator is the standard of Justice in legal and moral innocence and virginity and constitutes the state with his sovereign personhood endowed by our Creator. The one cell at conception does the will of God by existing as a human being. Lies about fake husbands and fake wives are perjury in a court of law as are lies about human sexuality in pornography.
    Good will is the will of the people who are in conformity with all unalienable rights endowed by our Creator.

  • Michael Paterson-Seymour says:

    Anzlyne

    “The written constitution is merely legislative; only a people who are already constituted can lay down the law.”

    That is true, for the nation precedes the state: unlike the state, it is not mechanical in its construction, but organic in its growth. As Mazzini, “They speak the same language, they bear about them the impress of consanguinity, they kneel beside the same tombs, they glory in the same tradition; and they demand to associate freely, without obstacles, without foreign domination, in order to elaborate and express their idea…”

    Of course, the national will embodies the national character, which pervades the natures of its members and expresses itself in their actions.

  • Paul Zummo says:

    I was just joking, Art.

    Having glanced at the document, what strikes me more than any particular point is the length of it. The Framers originally resisted incorporating a Bill of Rights precisely because they thought an enumeration of specific rights would have indicated that anything not mentioned was not protected. The 9th Amendment was their way of addressing this problem, but I’m not sure it has worked as intended.

    Of course our particular Bill of Rights was shorter and broader. This points to a much different conception of the role of government. If you are developing a government that you believe will have a fairly minimal role in society, then you would not deem it necessary to create an extensive list of basic rights. That the Canadian Bill of Rights (or Charter of Freedoms) runs so long tells you all you need to know about how its framers viewed the role of government in society. The bigger the leviathan state, the more rights you have to specifically enumerate. Note the length of the 1924 Soviet Constitution.

  • Michael Paterson-Seymour says:

    Paul Zummo

    It is interesting to compare the Bill of Rights, with the contemporaneous Declaration of Human & Civic Rights (26 August 1789)

    http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf

    It is a short document, two pages in length. It is a recognition, not an enactment of rights: “the National Assembly recognises and declares, in the presence and under the auspices of the Supreme Being, the following Rights of Man and of the Citizen.”

    Some notable features are the enumeration of “the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression (Art 2), the exclusive sovereignty of the nation (Art 3), law as an expression of the general will, which must be the same for all (Art 6) the accountability of all public officials (Art 15- this was particularly directed at the immunity of the Crown) and the laconic Art 16 – “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.”

    Most modern national and international declarations of rights draw on both the American and French models, although, for some reason, the right of Resistance to Oppression tends to be downplayed, or, even, passed over in silence.

  • Anzlyne says:

    Thanks Mary De Voe. If the will of the people is not good or does not even seek standards of good, a constitution for a democracy that could endure seems impossible. The constitution becomes “pesky” and irritating like some kind of a harness that chafes.
    ..which reminds me of the “dog joy” a sled dog shows when the kennel is approached by the master with a harness in his hands…. Of course the dog is
    not a philosopher, but the animal does recognize that the freedom to run comes with that particular constraint.

  • Mary De Voe says:

    Thanks be to God, Anzlyne: In the matter of free will and the will of the people, only good will is free, otherwise, “the people” are impugned, denigrated and violated. When a sovereign person consents to commit a sin and crime his sovereignty over himself is diminished. Diminished capacity is recognized in a court of law, but this is different, in that, the sovereignty of the person endowed at conception is perfect, but with the consent to crime, the person’s sovereignty is diminished, so that, the person may not constitute the state with or without his sovereign personhood. The criminal cannot become a citizen of the state, a state that he has not constituted, and because he has not constituted it, the state is not there for him. Taking citizenship to another sovereign person’s state, one must adhere to the principles adhered to by the other sovereign person.

    In denying to the sovereign person, the human being, his divine destiny in being composed of human body and immortal, rational soul, and in denying his endowed civil rights, and trying to deny to the sovereign person, another citizen, the practice of his endowed unalienable rights, the atheist diminishes, compromises and may be forfeiting his own sovereignty, to the degree of his consent to deprive another citizen, who is a sovereign in his own right. The atheist loses his ability to constitute the state. Without his sovereignty, the atheist has no authentic sovereignty to constitute the state.

    The Freedom from Religion Foundation is good for atheists but for people of faith, it becomes the Freedom from Freedom of Religion Foundation. To the degree that the atheist conspires, intends and consents to deny to another citizen the acknowledgement of the other citizen’s sovereign personhood and his unalienable rights, the atheist diminishes his own sovereign personhood and forfeits his unalienable rights. The atheist becomes a traitor to our founding principles, an outlaw, exiled, cut off from his people.

    In the Catholic Church, those members who conspire and consent to do evil, abuse other sovereign persons, no matter what age, self-excommunicate themselves, to the degree of the sin and crime, immediately upon surrendering their sovereign personhood to the evil. The evil doers are separated from the Body of Christ.

    The Catholic Church was instituted by Jesus Christ to offer worship to God and to continue Christ’s work in bringing souls back to Christ’s Father in heaven.

    The state prosecutes, the Church forgives. The state cannot indulge in prostitution, abortion, pornography, and sodomy and expect to prosecute child abuse.

    The state must prosecute crime. The Catholic Church must forgive sins. When the state validates vice, legalizes crime and indulges in evil, the state, constituted by the good will of free men, ceases to exist as freedom and becomes an atheocracy.

  • Mary De Voe says:

    Michael Paterson-Seymour: from Jefferson: “This principle, that the earth belongs to the living and not to the dead, etc.” Could Jefferson be calling upon the trust in which all Church property is held for our constitutional posterity, (from the Preamble), for all future generations to come? The “IN GOD WE TRUST”. Our obligation to hand over to the coming generations the sovereignty, the unalienable rights, the founding principles, the reigns of a nations so brought to birth in freedom, that truth and Justice in law and tradition flourish, so that when citizens lay down to sleep in death, they may rest in peace. I find it particularly fascinating that both Jefferson and Adams passed into eternal life on July 4th, only four hours apart.

  • Mary De Voe says:

    Many persons quote opinions of our founding fathers as law. The Declaration of Independence and our Constitution are ratified by all the states and are our law of the land no matter what is their writers’ opinion. Having been ratified by the states, the law of the land and our founding principles must be interpreted by the Supreme Court as written. The “living Constitution ” cannot be interpreted to mean anything but what it says or unless change is ratified by two-thirds of the states, it is what it is. The principle of separation of church and state is a good example of an opinion of Thomas Jefferson’s that has been abused to the point of criminality in depriving freedom, when in fact, Jefferson stated his opinion to support the First Amendment. In interpreting our founding principles, it is necessary to consider the whole of the law. Speaking to God is free speech even for the unborn. Piecemeal, reconstructed, often destroys the meaning and intent.

  • Michael PS says:

    Mary de Voe

    Jefferson does raise a rather interesting point in his letter to Madison.

    If law is a command (an act of the will), how can it outlast those who will it? In other words, how can the commands of the dead be binding on the living?

    That is why Jefferson argues that all laws should have a “sunset clause” or expiry date.

    For practical reasons, he does not think the right of repeal an equivalent – See my post of 1 January at 12:08 supra.

  • Mary De Voe says:

    Michael PS:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
    Every newly created human soul brought into existence and endowed with sovereign personhood is an “I AM”. Not one single “I AM” may be left out of “WE”. The Preamble to our U.S. Constitution states specifically the purpose of our Constitution. While the Law of the Land may vary, be amended, or change with the culture, the purpose of its being does not change or may the Preamble be removed, erased of modified. If the rights and freedoms endowed as unalienable by our Creator can be removed or modified, the people are no longer free, in the freedom created for us by our Creator. I keep using “their Creator” as does the Declaration of Independence precisely because atheists and others have removed the acknowledgement of God from our culture and from the public square.
    Our “POSTERITY” are all future generations to whom and for whom we must secure the Blessings of Liberty through our constitutional laws. Is there a right to privacy to destroy our Constitutional posterity? There is not, especially when that right to privacy removes from every male citizen the ownership of his own seed and offspring, and from the newly begotten person the freedom to defend his life from capital punishment, and from our posterity, the right to have informed consent at emancipation. Is there a right to corrupt our natural virginity, innocence and Justice? There is not, especially since Virginity, innocence and Justice are endowed unalienable virtues granted to the human person through the person’s immortal soul created by our Creator and endowed with all virtue and innocence. Is there a right to redefine the human person as having no soul for the purposes of the state? There is not, especially since the state does not create the human being’s rational, immortal soul, nor does the state endow unalienable rights to Life, Liberty and the pursuit of Happiness. These unalienable rights are endowed by our Creator, WHOM, the atheist has removed from us. The atheist has criminalized the worship of God in thought, word and deed, in belief, in speech, in press and in peaceable assembly, abandoning citizens as prey for predators, and countermanding the states’ obligation to protect and preserve our virtue… “and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  • Mary De Voe says:

    Michael PS:
    It cannot be otherwise. When all is said and done, it is a dead issue, not the Constitution, but the greedy evil to instill injustice and harm into the nation, by misrepresenting, and miscarrying our Justice.

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