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I imagine my views on politicians may be a minority one. I think that most of them are politicians because they feel that they can make a difference in people’s lives and in our community, state, and country. A difference for the better.

Yes, there are some who are in it as a power trip and/or for opportunities to make money. Others get seduced by the power and availability of money. However, these are the minority. Most are good people, many of whom I strongly disagree with.

The reason so many people disagree with me is due to the nature of politics in a democracy. Politics by its very nature is the art of not being crushed while continually working in the narrow, shifting space between rocks and hard places. Consider:

– Politicians are elected and are supposed to represent the views of their constituents. However, not all of their constituents think alike…not even close. So, who to listen to?
– In addition, while they are supposed to listen and heed the voice of the people they are roundly criticized if they follow the polls that tell them what most of their voters are thinking and believing. If they follow the polls they are seen as characterless and without principles, pandering to whichever way the popular wind is blowing. If they do not, then they are often perceived as arrogant and as not listening to the will of the people.
– They are supposed to stand for their values and not back down. However, politics is the art of compromise – you give up something in order to get something so that a bill is passed that doesn’t give anyone everything but gives most something – just enough something to pass. While this has always been risky in that it gives possible ammunition for opponents within their own party in the next election, it is much more so in today’s political environment – those who actually try to work out deals and compromise are being denounced loudly and roundly. Yet without compromise, nothing gets done – rather like our current Congress. Our founders were men of great principles, ones firmly believed in and fought for. Yet the Constitution is a document built on hard fought compromises, a document that pleased no one entirely during its time, but that most thought was an improvement over what they had. And the best that could be done in their own political climate.
– Politicians are roundly criticized for being beholden to those with money who contribute to their campaigns. Yet, if a candidate eschews such money, they will lose to the more well financed opponents. Very few or no politician accomplishes anything of worth in just one term.
– And while many voters are against money having such an outsized voice in our system, many voters shout in loud voices against any type of actual reform of the system. This adds the pressure of not only being accused of not “listening to the people” but also the twin risk of donor providing large amounts of money for your opponents election team and not yours. A double whammy.
– I would consider a person who changes their mind on issues due to thinking about the evidence a good thing. However, for politicians it is often considered a bad trait and they are accused then of being inconsistent, wishy washy , or spineless.

So, politicians are expected to be strongly principled representatives who do not back down, uphold their values and that of their varied constituents, who are leaders but who do what the people want and who listen to all of the people no matter how conflicted that people may be and who are not beholden to moneyed interests but are expected to run a winning campaign without money and are elected by voters of whom a large number are against significant financial reform. That is not to mention they are expected to get things done and address the problems of their communities, states, and nations without compromising any of their “values”.

Oh, they are also not supposed to be ambitious – although why not I am not sure. Ambition can be either good or bad depending on what the ambition is and what measures are considered acceptable for achieving it. But ever since George Washington (who was an ambitious man) this has been an expectation on the part of many.

For myself, I believe that most of our politicians do believe they are doing the right thing for the country and their constituents. Even those that disagree with, they believe the policies that they are fighting for will benefit the nation. Doesn’t mean that I don’t disagree, often quite strongly since I live in Texas.

This also does not mean we do not elect idiots and fools into office. Just that their intentions are good and mostly honorable. Of course, there is that proverbial road paved with good intentions and where it leads. Which is why though I cut them some slack on motivations I blast them on policies I disagree with. It is the democratic way.

religion 3“….no religious test shall ever be required as a qualification to any office or public trust under the United States.” Article VI, U.S. Constitution
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” First Amendment U.S. Constitution

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“You shall have no other gods before me.” Exodus 20: 3. New International Version (NIV).morality 10 commandments

“You shall not bow down to them or worship them; for I, the LORD your God, am a jealous God, punishing the children for the sin of the parents to the third and fourth generation of those who hate me,” Exodus 20:5. NIV

“12 If you hear it said about one of the towns the LORD your God is giving you to live in 13 that troublemakers have arisen among you and have led the people of their town astray, saying, “Let us go and worship other gods” (gods you have not known), 14 then you must inquire, probe and investigate it thoroughly. And if it is true and it has been proved that this detestable thing has been done among you, 15 you must certainly put to the sword all who live in that town. You must destroy it completely, both its people and its livestock. 16 You are to gather all the plunder of the town into the middle of the public square and completely burn the town and all its plunder as a whole burnt offering to the LORD your God. That town is to remain a ruin forever, never to be rebuilt,” Deuteronomy 12: 13 – 16. NIV.

“10 They assembled at Jerusalem in the third month of the fifteenth year of Asa’s reign. ….12 They entered into a covenant to seek the LORD, the God of their ancestors, with all their heart and soul. 13 All who would not seek the LORD, the God of Israel, were to be put to death, whether small or great, man or woman: 2 Chronicles 15: 10, 12 – 13. NIV
Emperor Constantine I: In 317 he issued an edict to confiscate Donatist church property and sent the Donatist clergy into exile. In 325 he summoned the Council of Nicaea to determine what should be church doctrine.

The Northern Crusades: Crusades carried out by the Christian Kings of Sweden, Denmark, and Poland against their pagan neighbors in the 12th and 13th centuries. an-allegory-of-the-wars-of-religion

The Inquisitions: A group of institutions within the Catholic Church set up to combat heresy and blasphemy starting in 12th century France and lasting into the 19th century. Usually used in conjunction and with the support of the state. For example: King Ferdinand II of Aragon and Queen Isabella I of Castile established the Spanish Inquisition in 1478.

In England the Act of Supremacy of 1534 made the King or Queen of England “the only supreme head on earth of Church in England”. Due to this, being Catholic made one a traitor and was an act of treason against the state. The Scottish Reformation in 1560 also made it illegal to be a Catholic in Scotland.

The persecution of the Quakers by the Puritans in the Massachusetts Bay Colony. In 1656 the Massachusetts Bay Colony passed laws against anyone bringing Quakers into the Colony or anyone harboring them. They would be fined 100 pounds and then either imprisoned or banished. Other fines included 54 pounds for possessing Quaker books or writings, 40 pounds for defending the teachings of Quakers, 44 pounds for a second offence of defending the teachings, followed by imprisonment until the offender could be shipped out. The laws also allowed corporal punishment ie., whippings, cutting off of ears, boring holes in tongues, and hanging.

by Jan LuykenIn the recent past all countries had laws against blasphemy. Usually it was OK to speak out against other religions but not the religion of that country. Many countries, including those in Europe, still have laws against blasphemy on the books, although the last prosecutions using these were usually in the early 20th century. Despite this, some countries have resisted the elimination of laws against blasphemy. As recently as 1998 an attempt was made to rescind Finland’s laws against blasphemy, and failed.

In the United States the authors of the Constitution were heavily criticized for not enshrining God and Christianity into its text. This omission of God and Christianity was denounced by the Reverend John M. Mason who declared it “an omission which no pretext whatever can palliate.” He went on to warn “we will have every reason to tremble lest the Governor of the universe, who will not be treated with indignity by a people more than by individuals, overturn from its foundations the fabric we have been rearing and crush us to atoms in the wreck.” Others warned of the dangers of not putting God and Christianity into the Constitution because it would be an “invitation for Jews and pagans of every kind to come among us.” and that “a Turk, a Jew, a Roman Catholic, and what is worse than all, a Universalist, may be President of the United States.” This was one of the arguments made against ratifying the newly proposed Constitution.

Attempts were periodically made to correct this “mistake”. For example, during the beginning of the Civil War, the National Reform Association was founded in order to correct the mistake that was tearing our nation apart. No, it was not slavery that was the mistake in the eyes of these clergymen but, instead, it was the lack of an acknowledgement of God and Jesus in our Constitution.

In 1863 an attempt was made to amend the Constitution’s preamble and there acknowledge not only God but also Jesus Christ as the source our government. The clergy involved in the National Reform Association devised a statement that would not offend any of the mainstream Protestant denominations (they were not worried of course about Jews, Quakers, or Catholics who, being religious minorities, were aghast at the idea). It proposed replacing “We, the People of the United States, in order to form a more perfect union…” with “Recognizing almighty God as the source of all authority and power in civil government, and acknowledging the Lord Jesus Christ as the Governor among the nations, his revealed will as the supreme law of the land, in order to constitute a Christian government…”

The National Reform Association met with President Lincoln in February 1864 and presented him with their petition for a Christian government. His response was the observation that “…the work of amending the Constitution should never be done hastily.” and a promise to “take such action upon it as my responsibility to my Maker and our country demands.” He then took no action at all. Neither did Congress, instead tabling the resolution for years until it was forgotten.
The last attempt to insert a Christian amendment into the Constitution was in the early 1960’s. It never made it to Congress for a vote.

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christian_muslim
The contrast between the words of the Constitution and the words of the Bible and the example of history are stark and apparent. The Constitution is a secular document creating a secular government, not a Christian one.
“16 Then the eleven disciples went to Galilee, to the mountain where Jesus had told them to go. 17 When they saw him, they worshiped him; but some doubted. 18 Then Jesus came to them and said, “All authority in heaven and on earth has been given to me. 19 Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, 20 and teaching them to obey everything I have commanded you. And surely I am with you always, to the very end of the age.” Matthew 28: 16 – 20 NIV”

Given the above task given to Christians by Jesus – the Great Commission – governments have argued that to not promote Jesus and God leads to the eternal damnation of those not aware of Jesus and God’s mercy. To save people from this fate by bringing them to Christ is a basic Christian responsibility and a basic responsibility of a Christian nation. This is one of the major reasons governments promoted one religion and persecuted and condemned others. This is something Christian governments have done from the very beginning. Their not doing this is a thoroughly modern event.

In fact, it is our government, the government of the United States, that started this split between government and religion. It declared that no longer would government be concerned with the state and fate of an individual’s soul. Instead, that would be the province of each individual to deal with as they best saw fit. Instead the government would deal with purely secular matters.

The reason why our founders went against the clear teachings of the Bible and the example of almost 1800 years of Christian governments is due to their clear view of history. During the almost 1800 years of good Christian governments trying to follow the precepts of the 10 Commandments and the Bible religious conflict was pandemic. People within a country were often persecuted, tortured, and killed for being of the wrong faith. Religious differences made warfare between countries even more horrific.

This history made men of conscience such as Roger Williams and, later, our founders, realize that man cannot dictate the conscious of others through the use of government. Roger argued that Man and thus his creation governments, are fallible and can favor the wrong belief, thus causing many more to go to hell than would have otherwise.

Our founders dispensed with this part of the argument and kept to the fact that too much conflict, spilled blood, and evil is done when governments attempt to dictate the conscience of its citizens. Therefore it is best to be left to the individual if the goal is to create a just, long lasting and fair government.

I posted this in light of the recent Public Policy Poll showing that 57% of Republicans favor establishing Christianity as the national religion and only 30% opposed this idea (the relevant question is on page 3). This, as the above shows, displays an astonishing lack of knowledge of both Christian history and of our own Constitution. Or rather, it would be astonishing if I had seen so many displays of such ignorance before.

And that is not even mentioning the fact that so often these same people criticize Islam for wanting to establish Islam as the state religion (although this is not universal in Islam– either today or in history). It seems that whether mixing state and religion is a good idea or not depends on whose religion is about to be bonded to the state.

However, the establishment of state religions – whether they be Christian, Muslim, Buddhist, Atheist or whatever – is always a bad idea. It is not religion alone that leads to the greatest conflicts and abuses but rather the mixing of the two that does so.

This is something I expounded on in an earlier blog “What Most Have Forgotten”.

“Although some of our founders were traditional Christians, most, while devout, were not traditionally so. Many believed that religion encouraged morality in the common people and so followed religious practices. All, though, recognized the danger that comes from religion and government becoming entangled. All recognized the necessity for a secular government. All remembered the reasons why a strict separation between church and state is necessary. I think it is time that many of us read more thoroughly our own and European history and take a good look at the world around us.

I think it is time that we start remembering again.”

Atheism, Theism, Violence.

Today there is a news story about a man who cold bloodedly shot and killed three Muslims students in Chapel Hill, North Carolina. A possible motive of the killer is that he is an atheist and hates religion. Regardless of the accuracy of this I find it interesting how many atheist blogs are saying that atheism has nothing to do with promoting violence and that this violence cannot be pinned on atheist beliefs as they can with theistic beliefs.

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A typical example of this line of reasoning is from a blog by Joshua Kelly titled Atheism Did Not Kill Three Young Muslims in Chapel Hill:

“I’m not entirely convinced that any motive that might be stated could criminalize the idea of atheism or the atheist community’s aims and goals, even if he were to outright comment something as blatant as: “I killed them for atheism.”
This sounds immediately like a hypocritical statement. But, while it is true that faiths like Islam have inked within their primary tenets of morality mandates to slaughter those who leave the religion or those who outright oppose it, as do Christianity and Judaism with equally horrific language, we must absolutely remember that atheism does not have a series of standard social doctrines. We do not have a Bible. We do not have a Koran. The atheist mentality is stemmed from the simple truth that there are no gods, and thus the individual acts on philosophical bases on his own choosing. This contemptible man, whether over a parking spot or because of an innate psychopathy or any other reason, cannot be said to have killed anyone because his non-god told him to do it. “

I have several problems with this sort of reasoning.

First, it seems to me he is arguing that beliefs do not effect behavior, or have consequences in our behavior. Or at least atheistic ones do not.

Yes, not believing in God does not in and of itself create or hinder a disposition to violence. However, neither does a belief in God. What does determine that is what else is attached to this belief or non-belief. And just as with theism, what is attached can be conducive to violence, it can be against violence, or it can be neutral.

And that is the other thing that bothers me about this reasoning. It treats religion and all religious belief as if they were all the same. But they are not. They are varied in their exact beliefs, in how they practice and manifest their beliefs and how they interact with society. And yes, there are violent passages and exhortations within most sacred works that atheism does not have. But then, there is also much inked into their sacred works promoting social justice, equality, love, and charity. Something atheism also lacks. How these contradictory strains within religion become reconciled and acted upon depends on a great many factors beyond just believing in a God.

Although atheism does not have a sacred work, the same process is at work.

To take just one example, as an atheist do you value rationality above all else and feel that irrationality is at the root of all evil? Combine that belief with the belief that religion is the height of irrationality and has done nothing but evil, and then combine that with a belief that all Muslims are terrorists and responsible for acts such as 9/11, and viola …you have the makings of a killer. A killer looking for a trigger. Or possibly a killer just looking for an excuse. But then many of the deaths attributed to religion are really nothing more than killers looking for an excuse.

And least you think this is all theoretical, I would say that something very like this has already played out in the real world, and not just once. The Soviet Union with its promotion of atheism and its discouragement of religion as an evil. Or Albania under the Soviet Union. Or Communist China. All of these regimes have jailed, tortured, and killed believers just because they were believers. For that matter, you can look at the French Revolution as another example of this.

Neither the belief in God or the non-belief in God by themselves promote or hinder anything. It is what is attached to these beliefs as it interacts with the personal situation of the individual that determines that. And to me, to dismiss Christians or Muslims or other theist’s explanations for why violence committed by their practitioners is not really their fault but then to do the same as they when the killer is an atheist is indeed hypocritical.

Which brings me to my final objection to this line of reasoning. It divorces atheism from being human. Humans are capable of both great and good deeds and also terrible and evil ones. This means that human beliefs are brought in to serve in both human capacities. To say that this cannot happen with atheism seems to me to push atheism out of the realm of human belief and into….I know not where. However, wherever it winds up it winds up then not having any relevance to our existence.

Science can be used for good and evil and that good and evil justified by science. Philosophy can be used for good and evil and that good and evil justified by philosophy. Medicine can be used for good and evil and that good and evil justified by philosophy. Religion can be used for good and evil and that good and evil justified by religion. All of human thought and experience can be used for good and evil and that good and evil thereby justified by those thoughts and experiences. Except for atheism apparently.

Sorry, not buying it. Not believing in God is a human thought, a human belief, and like all of humanity’s creations it can be linked up with other ideas to do both good and evil. To pretend otherwise is to delude and blind ourselves to reality.

Freedom of speech. Almost everyone lauds it as not only necessary for a functioning democracy and a free society, but as a positive good. In the United States this concept is protected in our first amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

However, some argue that there are limits on free speech. In fact, almost everyone, including me, agrees that there are limits on free speech, just as there are for all of our other rights whether it be freedom of religion or the right to own a gun. The more interesting questions though is what those limits are and who should be the ones enforcing those limits.

What brings this up today for me – and why this is not my next post on myths about the American Constitution – is that this has become a very hot topic with the murder of 11 people in the attack on the offices of the French satirical magazine Charlie Hebdo by Muslim terrorists. Should speech that is hateful or strongly offends religious beliefs be limited?

Tribute To Victims Killed During Attack At Satirical Magazine Charlie Hebdo At Place De La Republique In Paris

Now, in the United States there are already many limits on free speech. For example:

– It is illegal to engage in speech that encourages others to commit specific and imminent illegal acts. To use the old (and outdated) analogy of shouting fire in a theater: shouting fire in a theater by itself is not illegal, but shouting fire when there is none that incites an unlawful and deadly or injurious riot would be. Relevant to this is the 1969 Supreme Court decision in Brandenburg v. Ohio that ruled that inflammatory speech, even speech advocating violence, is protected under the first Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

– Child pornography and other types that may be deemed obscene.

– Libel and slander.

– Copyright laws are also a limitation on free speech.

– Laws regulating advertising are also a limitation on free speech.

– Statements made by public employees in the performance of their work can also be limited and are not protected by the free speech clause of the First Amendment.

– Patent laws and laws against disclosing military secrets are likewise limitations to free speech.

– Laws limiting when and where public demonstrations can occur.

So, there are already several limitation on free speech in the United States. And that is not even considering the fact that free speech only applies to governmental actions. If you are working for a private business you have no right to free speech while working. Your employer can limit what you can and cannot say. For that matter, parents have the same power over their children.

freedom-of-speech1

Now though many feel that we should be adding one more restriction to free speech, a limitation or law against Hate Speech. The American Bar Association defines Hate Speech as:

Hate speech is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.

Before I explain why I am against hate speech laws let me first declare that I am against all hate speech. I would like it purged from society. Having said that though I must now make a critical distinction – there are different ways of accomplishing this, through government action or through the actions of people acting both alone and in groups.

All of our laws are a balancing act between the protection, preservation, and furtherance of a civil and fair society and the protection, preservation, and furtherance of individual freedom. This balancing act is necessary because a viable democratic society requires both a strong social structure and strong protections of individual liberties. Without both there can also be no stable, viable, democratic society. The catch is that both of these necessary values are also in a state of continual and dynamic tension with the other. In other words, they often clash. And when they do, trying to find the right balance is often not clear and almost always contested.

For myself, legislating hate speech and outlawing it is going too far. Yes, it is easy to point to examples that are clear hate speech; however, laws are not starkly black and white affairs. The world and the people who inhabit and live in that world are always faced with shades of gray – is a certain act murder or self defense or negligent homicide or unavoidable accident for example. How does hate speech get defined and enforced in those gray areas? Who makes the decision in those cases? It would be very easy for those in power or for a majority group to use a power to define what is and is not hate speech within the vast greys of reality to promote their own interests and values; to the detriment of minority groups and views.

For myself, when I look at how governments have tried to use legitimate concerns about society and the protection of our government to create and enforce laws that unnecessarily limit the speech of political opponents and of those who hold minority views, I think that making hate speech illegal would be giving the government too much power. Examples abound, from the Alien and Seditions Act of 1798 to the Smith Act of 1940 to the Communist Control Act of 1954 to our modern debate over Edward Snowden’s illegal leaks of classified materials.

In the case of hate speech, a much better balance is to leave illegal speech connected to imminent violent acts where it currently is, illegal and enforced by the government, and to have hate speech be denounced and protested against by private individuals and groups.

human-shield-300x200For example, having the hateful speech of the Westboro Baptist Church members being met with counter protests or campaigns to raise money for billboards with the message that “God Loves Gays” or having other protesters screening mourners at funerals being picketed by the Westboro Baptist Church with their own bodies and signs of support.

Or this, from the Division for Public Education of the American Bar Association:

Here’s how one community recently approached an incidence of hate speech by calling attention to it rather than attempting to suppress it—by encouraging speech that pointed out how out of place the hate speech was in a community that values the dignity of all.

Matt Hale, a notorious racist, was recently asked to speak at the University of Illinois at Springfield. Hale is the leader of the World of the Creator, a white supremacist group. His presence on campus was controversial. Several students, faculty, and community members thought that the university should cancel his appearance. Instead, he was allowed to speak. Hale’s audience was not impressed. He came across as having a confusing set of beliefs that were out of place in a democratic, multicultural society. Several faculty and students spoke out against his message of hatred.

By allowing Hale to speak, the university recognized free speech rights but also provided a means for community members to respond. Communitarian and libertarian goals were both met.

Yes, hate speech needs to be opposed. However, using governmental laws to accomplish this societal good carry too much risk to individual rights. A risk that in the end could pose a greater risk to a democratic society than allowing hate speech would.  Provided that individuals and groups continue to oppose such speech.

I have finished reading Constitutional Myths by Ray Raphael. And just as reading the beginning sparked thoughts about our Constitution, it origins, and how it is regarded today that was the basis for my blog “Our Flawed Understanding of Our Founders and Our Constitution”, the reading of the rest of this book has continued to strike sparks. Enough so that it has resulted in more fires in the form of more blogs.

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As I said in my previous blog, while in broad terms I was familiar with much of the information given in this book, the details were often new and illuminating. As was the way it was organized, an organization that helped to highlight and clarify some of my own thoughts from earlier readings about this subject and time.

Let’s start this fire by looking at what most of the framers at the Constitutional Convention were working towards. In other words, what sort of national government did most of the framers of the compromise document now known as our Constitution seek? This is of special relevance today with our debates over how powerful the national government should be and over what powers it should have. Many of those on the side of a very limited national government cite our founders and their words as support for their views and arguments.

Before moving on to the question of what our framers were trying to accomplish in terms of government, I should mention something about the use of quotes by all sides. Context.

In regards to properly understanding a quote and what its speaker actually thought, context is everything. And I mean context in the broadest possible sense of the word – who is speaking (someone speaking against the Constitution such as Patrick Henry), where the words were spoken – in private, as part of a campaign speech, etc. – and how old was the speaker at the time – the framers views and opinions often changed over time. This context is something that I will discuss later one. For now though, just be aware of how important context is in understanding the framers and founders words.

A Weak or Powerful National Government?

What most miss in America is that in creating the first large Republican government in the world (something widely thought to be impossible by most of the world at the time) our founders were concerned not only with limiting government but also, seemingly paradoxically, in creating a strong national government. From Constitutional Myths by Ray Raphael:

“Whereas the framers believed that government without restraint would inevitably lead to tyranny, they also thought that government without strength would lead to chaos and anarchy…To turn the nation around, they needed to fashion a strong central government, and to justify that brazen move they would have to base their new government on sound civic principles.” page 58

“The framers did not totally abandon Whig principles, which had been formulated to check magisterial rule, but they adjusted them to suit a republic. Government was still suspect but, following Montesquieu, they created mechanisms within government that would keep liberty secure. They did not think at the outset, ‘Let’s see how we can restrain government’ but rather, ‘Let’s see how we can create a strong government with some set of internal checks, so it won’t tyrannize.” Page 61

“The restraint principles embedded within the text also need rebranding. “Separation of powers’ and ‘checks and balances’ are not distinct principles, and if treated that way, they contradict each other. To check on another’s powers, the allegedly separate branches actually intermingle… In fact, separation of powers and checks and balances aren’t exactly principles but strategies in service of a more general goal: diffusion of authority to prevent concentrations of power….By distributing authority within the federal government, the framers were able to give that government greater powers than it dared grant to a single body. As protections grew, more powers could be added – that was the framers’ basic strategy and crowning achievement”. page 62.

In other words, our founders were seeking the safest way to create a powerful national government, not a weak one. They had already experienced the self-destructive problems inherent in a weak national government under the Articles of Confederation; and rejected it. Indeed, many of them believed that a weak national government would lead to tyranny more surely and more often than would a strong one.

The trick, as they saw it, was how to create as powerful a national government as possible, but one that would not pose a danger to liberties and rights. The accomplishment of that trick was the diffusion of this power over several branches, each having established ways to impact the other.

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Moving on now to the next issue:1222111235.91

Interpreting the Constitution – Narrowly or Broadly

In regards as to whether the Constitution is meant to be interpreted narrowly or broadly – the correct answer seems to be yes.

Reading the details of the debate on what would eventually become the 10th amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” finds this debate centered around whether to include the word “expressly” or not – as in “The powers not expressly delegated…..” . This word would have emphasized a strongly narrow view of how to apply the Constitution.

Many were for adding this word. Many were against adding it. Madison for example, argued that “It was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutia.”

In the end more were against it and so “the First Federal Congress expressly decided” not to include expressly in this amendment. As Raphael says,

“the Tenth Amendment was in fact a compromise. Federalists, although accepting the principle of enumerated powers, would have preferred to keep that principle implicit, while critics of the Constitution had wanted a stronger statement. Both sides bent, but both also won….The government should not be too closely confined, Madison argued, and his view prevailed. ‘Powers by implication, ‘ as he called them, should be allowed.” Pg. 67

It is this compromise that has led to the ever on-going debate on whether the Constitution should be interpreted narrowly or broadly, whether anything not in the Constitution is also not allowed or if there are implied powers. The Constitution is sending “mixed messages” about this, purposely so.

“The framers refused to declare unfalteringly for ‘strict’ or for ‘broad’ because either choice, unmodified, would have been untenable. Without enumerating powers, the Constitution would permit the indefinite expansion of federal authority, yet without the flexibility inherent in implied powers, Congress could allocate no funds to help build dikes, dams, or airports; monitor weather to warn people of tornadoes; finance research for the eradication of smallpox….; operate the Library of Congress and the Smithsonian Institutions; or stage celebrations on the centennial and bicentennial anniversaries of the framing and ratification of the constitution.” pg. 68

Just as our Constitution was created out of strife, debate (often heated), and disagreement it was written in such a way that this volatile process would be on-going as it was applied to new and different situations.

I am currently reading, and greatly enjoying, a book by Ray Raphael titled “Constitutional Myths”. It looks at various beliefs many if not most Americans hold about the Constitution, its creation, and the founders and evaluates how much truth there are to these beliefs –Taxes, Politics, Principles, etc. It generally finds a kernel of truth, or has so far, but finds that for the most part these myths do not hold up well to the reality.

Now, having read quite a bit about the origin of our Constitution, I knew, in broad outlines at least, a great deal of this information. But this book is providing a great deal more details and also puts it together in ways that made me more aware of things that in my previous readings I had just passed on by.

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Given our current political climate, I thought a few comments on these might be of interest.

First and foremost – the Constitution was a compromise from beginning to end. I doubt that there were any of its writers who were satisfied and happy with it. Madison, Washington, Hamilton, and others have written letters stating this. Gouverneur Morris said that although he continued to have serious objections to this plan he would “take it with all its faults”. This was a common refrain.

Next, was the sheer amount of politics involved in this – politics at its worse. We often portray the founders are dealing solely with great principles of government and being guided by reason and a concern for what is best for all. However, the reality is that while that was partly the basis of their deliberations there was an equal, if not more, amount of self-interest, regional politics, and political wheeling and dealing and bluster. Issues such as how to best ensure representation for both small and large states, slavery, and other issues almost scuttled the whole process many times. In fact, the vitriol and rancor involved in these deliberations was probably almost as great as what we see today in Congress. Their saving grace though was a willingness to make a deal and compromise.

In fact, the electoral college was one of those comprises between intransigent groups. It was mainly between those small states who wanted one state one vote and the larger states who wanted votes based upon a state’s population, What I found interesting in this is that they also tossed in the House being the only one who could initiate money bills – something that had been defeated in an earlier vote establishing the Great Compromise on the Senate and House representation. This was tossed in to sweeten the deal for the larger states so that they would buy off on a Presidential election system that somewhat favored the smaller states. Today too many are willing to stand totally on principle and then condemn those who would work to find compromises.

Washington_Constitutional_Convention_1787
Also, in light of how many are touting state’s rights and pointing back to the founders, I found it interesting how many of them not only were not strong supporters of state’s rights but also saw them as a danger to the nation. Madison and Washington (along with one other delegate whose name escapes me right now) before the convention had corresponded about some ideas of what should go into a new Constitution. One such idea was that the national government should have the power to review laws passed by the states and veto them if they found them inappropriate. At the end of the convention both Madison and Washington still considered the lack of such a mechanism a great flaw in the Constitution.

In fact, Madison was against the Great Compromise that had the House being set by a state’s population whereas the Senate had each state equally represented regardless of population, and argued strongly against it. “Whatever reason might have existed for the quality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Government should be put into the place.”

Another point that was made was that taxes were the reason for the Constitutional convention and was one of the main motives for the creation of the Constitution. To be clearer, it was the necessity for the national government to have the strong ability to tax and raise revenue. After seeing the results of trying to create a functional government under the Articles of Confederation and knowing how vital a sure revenue stream was for good government, the lack of such was a major failure of that government and a major reason for the convening of the Constitutional Convention.

Finally, although I have not gotten to the chapter about Originalism, what I have read so far just henrycc2reinforces my own thoughts from prior readings – the idea that we can interpret the Constitution based on what the founders originally thought is balderdash.

First, the word “founders” presupposes that all or most of the founders thought the same way and agreed. They most assuredly did not. As I mentioned, the Constitution was a compromise document in which most had serious reservations on at least part of its provisions (which part varied by person). Further, as soon as the Constitution was ratified and started to be applied to specific issues of the day you would find the writers of that Constitution lined up on opposite sides of almost each and every issue. If those at the convention who wrote and signed the Constitution together could not agree on how to understand and apply it, what chance does discerning original intent today have?

To make this even more complicated, thoughts about the Constitution and how to interpret and apply it changed over time. For example, Madison’s thoughts from just after the ratification of the Constitution and his thoughts at the end of his life about the interpretation of the constitution changed. So too, did many others.

Given that our founders did not speak with a unified voice and their thoughts and ideas on the Constitution also changed over time, the idea of discerning original intent seems more of a chimera than a rational and realistic approach. It will be interesting to see what Raphael has to say at the end of the book.

For those Americans who are interested in the origins of or constitution “Constitutional Myths” is not a bad place to start. I know I am greatly looking forwards to finishing this book.

“Self Explanatory”

An unnamed medical legal examiner who responded to the shooting testified before the grand jury that he or she had not taken any distance measurements at the scene, because they appeared
“self-explanatory.”

BrokenJusticeMoney

Now that the Grand Jury has decided to no bill Officer Darren Wilson in the death of Michael Brown, to too many people, especially to too many white people, what happened in Ferguson on August 9, 2014 is “self explanatory”.
In the words of Elizabeth Powell’s letter to the editor in the Fort Worth Star Telegram

“I would dare say that after 70 hours of listening to witnesses and evidence and 25 days of courtroom time that the Ferguson grand jury came to a just and fair decision.

It obviously wasn’t made flippantly.

As law-abiding, responsible, intelligent people, they came to their decision not to indict. They made that decision based on facts and science, not emotion or hypotheticals.

If all the facts and evidence result in that decision, then the public needs to accept it.

If the public doesn’t, then they are merely saying that they don’t care about truth and facts, they just want a decision based off of what they feel and want. This is tantamount to lawlessness.

We live in a society today that largely rejects any form of restraint and personal responsibility. These two ingredients make up complete lawlessness.

Truth must always be upheld, no matter what the cost.”

What the grand jury decided is the truth… “self explanatory”. No debate, no questions, no doubts. And her voice is far, far from the only one saying this.

As noted in my quote above, the Ferguson police did not feel that distances between Michael Brown’s dead body and the police car needed to be measured because what had happened was “self explanatory’. Fortunately some other law enforcement agencies felt that it was necessary and, perhaps, not so self explanatory.

The first police officer to interview Wilson about the shooting did not record that conversation, did not take notes about the conversation, and did not write up his memories about the conversation until much later. As he stated later when asked about this breach of protocol in police procedure – “I didn’t take notes because at that point in time I had multiple things going through my head besides what Darren was telling me.”

Even worse, Wilson had called this officer personally after they had both been interviewed by investigators and went over his account of the tragedy again. The officer stated that there were no discrepancies between Wilson’s first account and the one given over the phone. But, if his mind was so filled with items other than Wilson’s testimony during the first interview, so much so that he could not take the time to take notes on it, then how could he be sure that they were the same? A distracted mind and all you know. Or, perhaps, one now guided by the questions posed to both of them by the investigator who interviewed them.

broken-gavelBut then, what happened was “self explanatory.

Officers did not test Wilson’s gun for fingerprints. That is normal police procedure that was among many normal police procedures – such as measuring distances and recording interviews for example – that were not followed. Had Brown’s fingerprints been found then that would have provided more support for Wilson’s story. Had Brown’s fingerprints not been found on gun though…well, questions would have been raised. Now we will never know.

But then, what happened was “self explanatory”.

Other violations of normal police procedures in shootings include:

– The initial interview being delayed while Wilson was sent to the hospital, in a car with a lieutenant colonel of the Ferguson police force and another Ferguson police officer. While initial interviews are sometimes delayed for medical reasons Wilson did not appear to need medical attention and later testified that he did not.

– Wilson not turning over his gun to a supervisor or someone designated by the supervisor but, instead, bagging it himself.

– Washing away the blood on him before samples could be taken.

– Not photographing the crime scene (fortunately another law enforcement agency was).

But then, what happened was “self explanatory”.

During the grand jury process more self explanatory happened.

In a highly unusual move, instead of arguing for one or more charges prosecuting attorney Robert McCulloch made no argument for any charge. Instead of finding the best evidence for any of the possible charges he made no argument and overwhelmed the jury with all of the evidence, burying them alive in information.

Alex Little, a former federal prosecutor who spent six years trying violent crimes, including homicides, told Vox’s Amanda Taub in August that the strategy raised concerns about McCulloch’s commitment to seeking justice in the case:

So when a District Attorney says, in effect, “we’ll present the evidence and let the grand jury decide,” that’s malarkey. If he takes that approach, then he’s already decided to abdicate his role in the process as an advocate for justice. At that point, there’s no longer a prosecutor in the room guiding the grand jurors, and — more importantly — no state official acting on behalf of the victim, Michael Brown…

Then, when you add to the mix that minorities are notoriously underrepresented on grand juries, you have the potential for nullification — of a grand jury declining to bring charges even when there is sufficient probable cause. That’s the real danger to this approach.

But then, what happened was “self explanatory”.

In another highly unusual move prosecuting attorney McCulloch had Officer Wilson testify. And did not cross examine him, letting his testimony stand as is. To have the accused testify before a grand jury is unusual enough in and of itself. To let him testify without cross examination or criticism amounts to letting the accused present his side and only his side to the grand jury – especially since prosecuting attorney McCulloch refused to fulfill his prosecutorial role at all, instead preferring to play the role of a passive defense attorney.

But then, what happened was “self explanatory”.

There were conflicts between Wilson’s testimony to the grand jury and his initial interviews. In the initial interviews he did not know that Brown was holding stolen cigarillos in his hand, noting only that Brown had handed something off to his friend before punching him. In fact, Wilson denied knowing that Brown was a suspect at all in the convenience store robbery. However, in his later testimony that changed and Wilson stated that he did suspect Brown was the suspect in this robbery and he did know that Brown was holding cigarillos.

But then, what happened was “self explanatory”.

Wilson claimed that he feared for his life in his fight with Brown. Yet his injuries consisted of only a slight bruise…not much for a life and death struggle.

But then, what happened was “self explanatory”.

More, much much more could be listed here. But by now it should be “self explanatory” what happened in Ferguson. At least for those who look at the evidence and the facts, the conflicting testimony and the gross negligence on the part of both the Ferguson police and prosecuting attorney.

It is obviously self explanatory that due to racial bias and prejudice, whether conscious or unconscious, and to the knee jerk reaction of the thin blue line to protect one of their own that a gross miscarriage of justice has occurred.

I do not know for sure what happened that day between Michael Brown and Officer Wilson. However, I do know that there is now a dead youth whose death will never be explained due to the fact that those in charge of the system decided to short circuit it and avoid a trial that would have examined in detail all of the conflicting testimony and evidence, argued it out in public and come to a conclusion about what really happened.

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Now we are left with suspicions and pain and suffering and the justified feeling on the part of the black community that once again they are denied even a chance at justice.

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