James Madison On Originalism & Judicial Activism

Doug Ross has a very good post today highlighting the differences between originalism - the proper role of judges - and those who embrace the "living constitution" theory. I've also posted on this topic in The Supreme Court: Originalism, Activism & America's Future:

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. . . .

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplaceable tool to remake society. . . .

Doug makes many good points in his post, and I urge you to read it. Most notable in his post was this warning from one of our founding fathers, James Madison:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

Truer words were never spoken.

The Constitution contains not one, but two methods by which we, the people, can amend the Constitution. Neither of those methods involve unelected judges deciding to amend our founding document per their whim. Left to their own devices, the Supreme Court has made radical changes to the very fabric of our nation over the past half century. The Supreme Court, unencumbered with any requirement to adhere to the intent of our founder, has been and remains the single greatest threat to the viability of our nation. The solution to this problem is simple, a law - or a Constitutional Amendment - limiting the discretion of judges deciding Constitutional questions to the original intent of the drafters and those who voted to approve our Constitution. That this was not included in Article III of the Constitution was a rare lack of foresight by the drafters of our Constitution.

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Palin, Religion & Left Wing Dogma

Steve Benen writing at Washington Monthly has his panties in a bunch. Apparently, he can't believe that Sarah Palin, actually believes that there was a role for religion within the outer ambit of the state at the time of our nations founding. This from Mr. Benen:

THE THEOCRATIC WING OF THE GOP.... A certain former half-term governor appears to be drifting even further away from the American mainstream. Over the weekend, appearing at an evangelical Christian women's conference in Louisville, Sarah Palin rejected the very idea of separation of church and state, a bedrock principle of American democracy.

. . . She denounced this week's Wisconsin federal court ruling that government observance of a National Day of Prayer was unconstitutional -- which the crowd joined in booing. She asserted that America needs to get back to its Christian roots and rejected any notion that "God should be separated from the state."

Palin added that she was outraged when President Obama said that "America isn't a Christian nation."

The amusing aspect of this is the notion that the United States would return to its roots with support for National Day of Prayer observances. That's backwards -- Thomas Jefferson and James Madison explicitly rejected state-sponsored prayer days. I'll look forward to the conservative explanation of how the Founding Fathers were godless socialists. . . .

But far less amusing is the fact that Palin and others of her radical ilk reject any notion that "God should be separated from the state." It's the 21st century, for crying out loud. There are some countries that endorse Palin's worldview and intermix God and government -- Iran, Saudi Arabia, and Afghanistan under Taliban rule come to mind -- but they're generally not countries the United States tries to emulate.

The separation of church and state has long been a concept that all Americans could embrace, and has served as a model for nations around the world to follow. For Palin to publicly denounce this bedrock American principle suggests she might actually be getting worse. . . .

. . . Update: Greg Sargent obtained a transcript, and it's worse than I thought. Palin not only thinks the Founding Fathers opposed church-state separation -- in other words, she thinks those who came up with the idea opposed the idea -- she also suggests religious people necessarily reject the constitutional principle. This is just astounding.

What is astounding here is the degree of Mr. Benen's historical ignorance. As to Madison and Jefferson vetoing a "national day of prayer," I wait to see that bit of historical fantasy. Lastly, as to the charge that Palin seeks to make America a theocracy, perhaps if Mr. Benen knew a bit more about Madison and Jefferson, he would understand how utterly ridiculous such a charge actually is. Mr. Benen is a pawn in the left's two centuries old war on religion - and not a particularly intelligent one.

Update: Greg Sargent, running a WaPo blog, the Plum Line, made a similar argument to Mr. Benan. Do they still teach history to journalists these days? Apparently, for these journalists, the history of religion in America begins with Everson.

Update: JP, writing at Texas For Sarah Palin, has a superb post up on the history of religion in America, and in particular, the history of "days of prayer" called by our government.

Update: Plumb Bob Blog also has an excellent post on this issue, take a deeper look at the Court's decision on the issue and some of the arguments the radical secularists are using to remove religion generally and Christianity in particular from the public square.

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Should The Right To Keep & Bear Arms Be An International Human Right

Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

Sir George Tucker, Blackstone’s Commentaries, 1803

One can hardly argue with the centuries old observation of Sir George Tucker set down in the first American edition of Blackstone's Commentaries on the law. An unarmed populace is subject to brutality and repression from a tyrannical government. The picture of an unarmed youth shot by basij in Iran speaks a thousand words on the topic.

Iran required gun owners to register their weapons in the late 1970's and then banned gun ownership, as opposition to the Shah coallesced. Iran's theocracy has kept that ban in place. As we watch the people in Iran, disarmed, fall to the predations of armed thugs and riot police of the theocracy, I wonder if we should not be arguing that the right to keep and bear arms should pursued as an international human right.

It is the most repressive regimes that seek to ban private ownership of weapons - and the UN. This from Janet Ellen Levy writing in the American Thinker two years ago:

In the international arena, the United Nations is at the forefront of a global movement to limit worldwide gun production and eliminate private firearms ownership. Total disarmament of civilian populations is the U.N. goal. For the past five years, the United Nations has convened an annual, international gun control summit to discuss strategies to forestall the "proliferation of small arms and light weapons." Participating countries have included Iran, China, Algeria, Nigeria and Bangladesh, among others, as well as anti-firearms, non-governmental organizations (NGOs) which have pressured governments worldwide to eliminate civilian gun ownership.

The images of today from Iran should hammer home why the more repressive the government, the more the push on their part to disarm their populace. And it should equally hammer home the stark need for people to have an absolute right to own weapons. As James Madison famously said "People should not be afraid of their government. Government should be afraid of their people." It seems to me that "human rights" begins and ends with that observation.

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