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23 Mar. 2017

Dear Friends and Patriots,

          If there was ever a showpiece for progressive ideology, it was the Supreme Court Justice confirmation hearings for Judge Neil Gorsuch these past two days.  What a spectacle!  Well, it was if you’re into hours of boring TV and also into the philosophy of American governance.  The hearings were generally boring, but from the standpoint of philosophy, extraordinarily revealing.  The star of the philosophic show wasn’t Judge Gorsuch, though; it was California’s Senator Diane Feinstein.  Her commitment to progressive ideology was on full display.  I’ll give you a couple of snippets of her remarks and one response from Judge Gorsuch, then tell you what I make of it all.
          This is from Senator Feinsteins’s remarks on Tuesday:

“I firmly believe the American Constitution is a living document intended to evolve as our country evolves. In 1789, the population of the United States was under four million. Today, we're 325 million and growing. At the time of our founding, African-Americans were enslaved. It was not so long after women had been burned at the stake for witchcraft, and the idea of an automobile, let alone the internet, was unfathomable. In fact, if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools, and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.  So I am concerned when I hear that Judge Gorsuch is an originalist and a strict constructionist.”

Senator Feinstein planted her flag with that statement.  She declared her own beliefs in how government should view the Constitution.  But, she wasn’t finished.  Later in the hearing she elaborated with a statement that reveals the truly perverse outlook she and almost all progressives hold and propagate”

“Judge Gorsuch has also stated that he believes judges should look to the original public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist judicial philosophy to be really troubling. In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would so would not only ignore the intent of the Framers, that the Constitution would be a framework on which to build, but it severely limits the genius of what our Constitution upholds.”

Yes, Tuesday was a fine day for Senator Feinstein to expound on her beliefs.  Then, yesterday she questioned Judge Gorsuch and asked if his originalist notions didn’t conflict with the equal protection clause of the 14th Amendment.  This response of Gorsuch’s should put to rest the notion that he never gave a substantive reply.  This one was extraordinarily substantive:

“It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.”

I’m pretty sure that answer had Senator Feinstein fuming a bit.  She was trying to paint the Judge as a hypocrite, but ended up getting a civics lecture instead.
          The Gorsuch hearings brought out many examples of progressive ideology, but there’s no space here to capture them all.  I recommend you read the remarks and questioning by Senator Al Franken if you want to be amused.  Senator Franken seems to have no problem making himself look the fool.  It obviously comes naturally.  I suspect, though, he’s oblivious to the truth of it.
          The debate on originalism is an old one.  It’s always been a flawed debate, but one the progressives are compelled to continue.  They can’t win the argument in any straight-up way, but they have their adherents.  I’ll try to explain how and why.
          The essence of originalism is the documented understanding that our nation’s founding was based on immutable principles.  The Declaration of Independence, the Articles of Confederation, the Northwest Ordinance of 1787, and the Constitution were all written according to principles accepted by their authors.  Those principles were stated overtly in some instances, such as “all men are created equal” and more subtly in others, such as in the Establishment Clause of the Constitution’s First Amendment.  Those principles have not changed one whit.  Indeed, how could they?  Natural Law and Natural Rights do not change.  They are what they are.  If one understands principles and how they relate to our nation’s founding one understands the fallacy of the “living” Constitution concept.
          The “living” Constitution debate has been held for well over 200 years.  In the earlier history of our nation it was far easier to refute.  Nothing much changed in the way people lived between 1787 and the Civil War.  No, the big changes came as the Industrial Revolution took hold and made dramatic differences in the way the people of the cities of our land lived and transacted with each other.  Along with the Industrial Revolution there came a couple of other forces earlier Americans didn’t contend with.  One was the socio-economic theories of Karl Marx, which he codified in his Communist Manifesto.  The second force was founded in the scientific theories of Charles Darwin and how they influenced the whole modernist movement.  Communism became the main social and economic competitor to capitalism in the second half of the 19th century and continued to be such until the latter days of the 20th.   Concurrently we saw many variations of Darwin’s evolutionist theories put forth and gain traction.  The concept of the “living” Constitution blends Marxist communist and Darwinist social and political evolution ideas and is intended to discredit the notion of principles as the underpinnings of our nation’s existence.

          Originalists continue to this day to reference the wording of Constitution and the explanations of the Federalist Papers in their determinations of Constitutional intent.  They don’t believe we should interpret the Constitution within the context of social evolution for one simple reason – there are no bedrock principles at play in social evolution.  How can there ever be any societal or legal stability, not to mention public trust, if something as amorphous as social evolution is used to judge laws that may remain on the books for decades or longer?  Where is the logic of such an idea?
           Senator Feinstein’s arguments for a “living” interpretation of the Constitution is nonsense.  She actually argues that because the framers of the Constitution included an amendment process their intent was to have the Constitution continuously re-interpreted based on whatever current reality the federal courts feel is a valid consideration.  That, my friends, is precisely what judicial activism is all about.  Senator Feinstein’s lack of logic should be apparent, even to her.  The amendment process is one where the people or Congress agrees overwhelmingly to the need for a new consideration.  It’s not one that grants the Supreme Court any such latitude.
          Her arguments also belie known facts that surrounded the creation of the Constitution.  Our founders understood that “all men are created equal” was not a statement of literal fact.  It was not to be so until conditions were right in the nation to allow it to be.  The Civil War aftermath saw the passage of the Thirteenth Amendment, which abolished one inequality.  The later passage of the Fourteenth Amendment and its Equal Protection Clause eliminated others.  The Fifteenth Amendment expanded the right to vote to ensure freed slaves could not be disenfranchised because of their prior status.  The Nineteenth Amendment ensures women have an equal right to vote.  The Twenty-Fourth Amendment ensures no one can be denied the right to vote by arbitrary taxation or test. The Twenty-Sixth Amendment grants full voting rights to all citizens over the age of 18 who are otherwise eligible.  These amendments themselves attest to the fact that the “living” aspect of our Constitution has been in the continuous efforts to move society to a full realization of the truth of its founding principles.  The principle of “all men are created equal” is still as valid as the day it was written into the Declaration of Independence.  Over the past two hundred years we’ve made great progress in realizing the dreams of our founders.  But, progressives want more.  They always do.

Everyone should know that Senator Feinstein is an ardent anti-gun proponent, even though she used to carry one herself.  She was one of the first to jump on and adopt the “assault weapon” fallacy.  Her logic is based on her “living” Constitution belief.  In 1787 muskets and flintlock rifles were the dominant personal weapons and towns were protected by locally organized militias.  Today we have modern police forces, state police, National Guard units and a standing army.  To Feinstein those are good reasons to believe the intent of the Second Amendment is more than accommodated without individual citizens owning a gun.  That’s her stance.  The obvious truth is found in a single principle, one that has been ratified and upheld in law ever since the time of the Roman emperor Constantine.  That’s the principle of self-defense.  Every living human possesses the Natural Right to defend himself from harm.  Senator Feinstein would have us all disarmed, without the independent means to protect ourselves or our property from harm.  Her logic is flawed because it’s not based on principle, but on her and many other peoples’ personal beliefs and opinions. 
          One thing that constantly amazes and bothers me is how infrequently the word “principle” is used in Washington.  I’m fairly certain the word is known, but it has fallen into general disuse.  That’s a situation that needs to be corrected.  If we all dealt with principles more and the current meaning of words less we’d all understand where each other comes from.  This is the crux of the argument held this week.  Progressives have spent decades in efforts to help “evolve” our language.  If they have their way the words of the Constitution would be virtually meaningless to us today.  That’s almost true of The Federalist Papers already.  If we allow conversations to be steered away from founding principles and onto parsing words of the Constitution according to a current dictionary, we will surely lose our way.  In that regard I’m not 100% impressed by Judge Gorsuch’s response, cited above.  He failed to use words like “original intent” or “foundational principle” in his response.  But, that’s where the heart of this discussion needs to go. 
          You think about it and tell me how any argument against original intent can prevail when the discussion is brought to the right level of principles versus individual belief and opinion?  Once on that level the “other side” has to argue against the merits of the principle, which means arguing against truths of human knowledge and historical experience.  I want that argument!

          Stay in the game, my friends.  We have a long, hard road ahead.  There will be no rest for the weary, just more and more challenges.  We all need each other if we’re to prevail.

In Liberty,