http://www.washingtonpost.com/opini...05aa00-c4ac-11e3-bcec-b71ee10e9bc3_print.html By George F. Will, Published: April 16 In a 2006 interview, Supreme Court Justice Stephen Breyer said the Constitution is “basically about” one word — “democracy” — that appears in neither that document nor the Declaration of Independence. Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government — natural liberty. The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected. Now the nation no longer lacks what it has long needed, a slender book that lucidly explains the intensity of conservatism’s disagreements with progressivism. For the many Americans who are puzzled and dismayed by the heatedness of political argument today, the message of Timothy Sandefur’s “The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty” is this: The temperature of today’s politics is commensurate to the stakes of today’s argument. The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights. Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, “spaces of privacy” that government chooses “to carve out and protect” to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification. With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature. “In Europe,” wrote James Madison, “charters of liberty have been granted by power,” but America has “charters of power granted by liberty.” Sandefur, principal attorney at the Pacific Legal Foundation, notes that since the 1864 admission of Nevada to statehood, every state’s admission has been conditioned on adoption of a constitution consistent with the U.S. Constitution and the Declaration . The Constitution is the nation’s fundamental law but is not the first law. The Declaration is, appearing on Page 1 of Volume 1 of the U.S. Statutes at Large, and the Congress has placed it at the head of the United States Code, under the caption, “The Organic Laws of the United States of America.” Hence the Declaration “sets the framework” for reading the Constitution not as “basically about” democratic government — majorities — granting rights but about natural rights defining the limits of even democratic government. The perennial conflict in American politics, Sandefur says, concerns “which takes precedence: the individual’s right to freedom, or the power of the majority to govern.” The purpose of the post-Civil War’s 14th Amendment protection of Americans’ “privileges or immunities” — protections vitiated by an absurdly narrow Supreme Court reading of that clause in 1873 — was to assert, on behalf of emancipated blacks, national rights of citizens. National citizenship grounded on natural rights would thwart Southern states then asserting their power to acknowledge only such rights as they chose to dispense. Government, the framers said, is instituted to improve upon the state of nature, in which the individual is at the mercy of the strong. But when democracy, meaning the process of majority rule, is the supreme value — when it is elevated to the status of what the Constitution is “basically about” — the individual is again at the mercy of the strong, the strength of mere numbers. Sandefur says progressivism “inverts America’s constitutional foundations” by holding that the Constitution is “about” democracy, which rejects the framers’ premise that majority rule is legitimate “only within the boundaries” of the individual’s natural rights. These include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment. Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.
I think he's misguided if he thinks conservatives don't want to use the will of the majority to establish rules everyone else must obey. See abortion or gay rights or immigration. He's spot on about the twisted view of the constitution by Progressives.
I would say he is spot on period. Where you seem to differ on the Abortion issue odd to me. The Constitution say nothing about Abortion nor should it. Therefore it is not a Federal issue and therefore the 10th amendment is the rule, it is matter for the States. The Court with a mindless ruling has made this one of the top political issue for 40 years and we have many more important issues to deal with. This is a case where the court stepped in and made an issue a perpetual issue. Immigration as screwed up as it is, is only a problem because the Executives do not enforce the laws that are on the books. They want new ones, but new ones are the business of congress. That has nothing to do with majority views. Sort of funny, they might be able to secure the border if they gave it the priority they give to one old rancher in Nevada. Gay rights is another odd issue that only becomes an issue when you change the definition of the word "Marriage". No one was complaining about Poligamy being restricted but they will now that Marriage is now not to be restricted to one man one woman. It seems to me that the correct solution for the Federal goverment and the States is to get out of the Marriage definition business and leave it to the people and their church of choice since it is the joining of a man and woman in the eyes of God.
Then again those Founders claimed liberties if you were caucasian and male and adult. Slaves, women, indentured servants, indigenous peoples and child laborers didn't have those empowering liberties, so the times have changed eh?
Slavery was a sore subject long before there was a concept of Progressive. The founders would have abolished it, but the economy relied too heavily upon it. Instead, they settled for setting a future date when no more slaves could be imported. The Civil War ended decades before the Progressive Era. If Progressives want to take credit for something, NSA spying on its citizens is the perfect one. Or maybe http://www.princeton.edu/~tleonard/papers/retrospectives.pdf
Proof conservatives would use the will of the majority to establish rules everyone else must obey. If YOU don't want an abortion, YOU don't have to. The constitution does talk about abortion in the sense of rights to privacy and right to pursue happiness and right to property (the woman's body is HER property). The constitution doesn't say anything about immigration. It does grant congress the right to determine citizenship, and it does mention Persons (capital P) 22 times - a Person is citizen or non-citizen. The constitution doesn't say anything about who may marry. But again, right to pursue happiness.
You make one rather large error in your assumptions Denny, that a conservative would never do. The Constitution is the follow on to the Declaration of Independence as best Congress could do to make it so. Therefore the Constitution is not defining nor implying any rights, it is simply laying out how this Representative republican government will protect the rights of the citizens, as the DoI states in the mission. " "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed" Rights do not come from the government, they come from the creator and the government is in place protect these rights. Abortion, happiness, and property are not rights and nothing says States can not place some obstacles in the path, indeed the 10th amendment says they can. Where as the even the States are prohibited to muck with your choice of arms as given in the 2nd amendment, or your right to free speech as given in the 1st, or your Liberty as given in the 4th and 5th. I seriously doubt that anyone of sane mind would argue that the creator would categorize "Abortion" as a right. Barrack Obama may well do so, I heard him say "Health Care" is a right a couple days ago, but I am not sure even the son of God would go there.
Nixon was a liberal, geez. He spied on us like Obama does. See: http://www.huffingtonpost.com/2014/02/21/noam-chomsky-richard-nixon_n_4832847.html (if you don't know who Chomsky is, read up on him, too). Or: https://www.google.com/search?client=safari&rls=en&q=nixon liberal&ie=UTF-8&oe=UTF-8 17,000,000 matches. Nixon implemented the EPA, OSHA, negative income tax, quota-based affirmative action, Clean Air Act, Environmental Policy Act of 1969, mandatory participation of the states in Food Stamps program, etc.
Abortion, Life, Liberty, Pursuit of Happiness are rights. That's where you went wrong. You also missed the 22 times (not counting amendments) the word Person is used (not Citizen). The very first thing in the congressional record is the declaration of independence. It was made the first law by act of congress.
Talking out your hat Denny, "Abortion" and "Happiness" are not in the list, Life, Liberty, "Pursuit of Happiness" are by DoI but not completely protected by the Constitution, only to extent of protections in the bill of rights. I totally miss your point on what "person" has to do with anything about a conservative view?
I view the Constitution as a series of negative rights. It's a list of what the government cannot do to you. Also, anything that is not taken by the Federal government is by definition given to the states.
Then I'm guessing J Edgar Hoover was a progressive as well? I don't think so. Nixon was pretty far from liberal Denny.
I've written "pursuit of happiness" 3 times in 3 different posts. Not solely "happiness" once. Who's talking out of whose hat? The constitution talks about Persons and it gives congress the right to NATURALIZE citizens, but it doesn't say squat about keeping people you don't want here out.
http://scholarsandrogues.com/2008/06/24/a-progressive-for-our-times/ Let’s say this guy was running for president on a third-party ticket: proven track record for getting country out of wars strong foreign policy diplomat who forged stronger relationships with powerful developing (and enemy) nations implemented the first significant federal affirmative action program dramatically increased spending on federal employee salaries organized a daily press event and daily message for the media oversaw first large-scale integration of public schools in the South advocated comprehensive national health insurance for all Americans imposed wage and price controls in times of crisis indexed Social Security for inflation and created Supplemental Security Income created the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), the National Oceanic and Atmospheric Administration (NOAA), and the Office of Minority Business Enterprise promoted the Legacy of Parks program appointed four Supreme Court Justices, three of which voted with the majority in Roe v. Wade Have you figured out where this is going yet? (The Liberal, Richard Nixon). How about Michael Moore? He should know a Liberal when he sees one: http://www.discussanything.com/foru...ore-quot-Nixon-Was-Our-Most-Liberal-Pres-quot Nixon was more liberal than the last five presidents we've had. His administration opened up a dialogue with China. He was instrumental in establishing affirmative action in hiring and protecting the rights of women. He was the first president to sign agreements on nuclear weapons control. Nixon was responsible for the 1970 Clean Air Act. He also attempted a type of welfare reform that would have guaranteed an income for the poor. Nixon still should have been run out of office, and the millions of dead in south-east Asia will haunt him throughout eternity. But to think that he was the last "liberal" in office just makes me want to puke.
You ask about Hoover? He came in to bust booze smugglers during the prohibition. Prohibition was another Progressive idea, typically bad idea. http://en.wikipedia.org/wiki/Progressivism_in_the_United_States#Prohibition Prohibition[edit] Most progressives, especially in rural areas, adopted the cause of prohibition.[37] They saw the saloon as political corruption incarnate, and bewailed the damage done to women and children. They believed the consumption of alcohol limited mankind's potential for advancement.[38] Progressives achieved success first with state laws then with the enactment of the Eighteenth Amendment to the U.S. Constitution in 1919. The golden day did not dawn; enforcement was lax, especially in the cities where notorious criminal gangs, such as the Chicago gang of Al Capone made a crime spree based on illegal sales of liquor in speakeasies. The "experiment" (as President Hoover called it) also cost the treasury large sums of taxes and the 18th amendment was repealed by the Twenty-first Amendment to the U.S. Constitution in 1933.[39]
Federal law trumps state law. Article VI, clause 2 This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
