John R. Houk
© November 14, 2014
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. (Bold text mine – Amendment I from Legal Information Institute of Cornel University Law School)
The controversy here is Original Intent vs. Living Constitution. Conservative prefer to err on the side of Original Intent while America’s Leftists prefer to err on the side of a Living Constitution.
The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.
Sometime called original understanding, originalism, or intentionalism, the theory of original intent is applied by judges when they are asked to exercise the power of Judicial Review during a legal proceeding. (The power of Judicial review is the power of state and federal courts to review and invalidate laws that have been passed by legislative and executive branches of government but violate a constitutional principle.)
Not every judge adheres to the theory of original intent, and many adherents fail to apply it in a uniform and faithful manner. Judges who attempt to apply this judicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution.
Originalists observe that the democracy created by the U. S. Constitution is marked by three essential features: : a Separation of Powers, Federalism, and a Bill of Rights. The Constitution separates the powers of the federal government into three branches, which help foster what is known as a system of checks and … (Original Intent; The Free Dictionary)
… The phrase original intent usually means the subjective opinion of those who wrote the Constitution as to what a particular provision was supposed to communicate. Original intent also is called the intent of the Framers. Researchers try to deduce the original intent by examining both direct evidence (what the 55 drafters said during the Constitutional Convention), and indirect or circumstantial evidence. Examples of the latter include, among other things, what people said about the instrument during the ratification debates, the meaning of key words in common discourse and in contemporaneous dictionaries, and their meaning in legal and literary sources.
The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth.
Obviously, the evidence used in prove each of the three concepts overlaps. In practice, moreover, the original intent of a provision is usually the same as the original understanding or original meaning.
In the event of a conflict between intent, understanding and meaning, which should control?
The key to answering that question is to answer another: “When the Constitution was adopted, what was its legal force? In other words, how would the courts of the time have interpreted it?
The Constitution is, of course, a legal document, so you can find the correct response to this question by investigating how judges, and other lawyers and public officials interpreted legal documents of the same general kind during the Founding Era. …
Thus, the original legal force of the Constitution—as it would have been applied by Founding-Era judges, lawyers, and officials—is based on the original understanding; if this is not recoverable, then you apply the original meaning. Original intent is useful only insofar as it tends to prove understanding or meaning. (Original Intent, Original Understanding, Original Meaning; By Rob Natelson; Tenth Amendment Center; 5/21/12)
Law School claims to teach Constitutional Law, but the Constitution is never opened. The entire concept of Constitutional Law in Law School is based on Case Law. The original writings, the original language, and the original intent of the U.S. Constitution is not even considered.
Those who wished to subvert the Constitution from the very beginning worked to use the courts, and “implied law,” to disarm the Constitution, so as to allow the federal government a greater opportunity to grow beyond the limitations placed on it by the specific language of the Constitution.
Along with studying the histories of Rome, Greece and Slovenia as examples of past republics, the primary research by the Founding Fathers was from their own Mother Country, England. The Anglo-Saxons provided the principles the founders needed to establish a lasting system of freedom, and liberty. They also recognized how easily statists could use the courts, or the living and breathing concept of Common Law, to change the Constitution, so the founders put into the Constitution strict standards, and a limited means for changing the Law of the Land (through amendments), while also making the Judicial Branch the weakest of the three branches of government.
Judicial Review allows the courts to review the law and determine if it is a just law, or even if it is a constitutional law. This is a commonly accepted concept, and it flies in the face of the original intent of the Founding Fathers, who wanted the States to be the final arbiters of the Constitution – not the courts.
… Judicial Review is indeed a sinister power for the courts to have. For the federal courts to decide if a law is constitutional is for the federal government to determine its own authorities. That, my friends, is hardly in line with the idea of limited government as originally prescribed by the founders.
The courts, through case law, have acted as an agent for the forces that are determined to bring down our system, and change it into a tyranny. Those who have bought into the case law myth, as has our female lawyer twitter friend of my friend, are accomplices in the effort to bring down our system of liberty, and limited government.
The damage is widespread, and the statist opinions are entrenched in our system.
Living Constitution is a term used to describe the Constitution’s ability to change to meet the needs of each generation without major changes. This is a concept used in interpreting the Constitution of U.S. It is based on the notion that Constitution of the United States has relevant meaning beyond the original text and is an evolving and dynamic document that changes over time. Therefore the views of contemporaneous society should be taken into account when interpreting key constitutional phrases.
… Mr. Obama found himself engaged in a subject that stirs up his leftwing passions. Below are some of his bombshell comments (emphasis added):
The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and [sic] Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
That straightforward excerpt provides a clear window into the constitutional philosophy of Barack Hussein Obama, Jr. As radical as “people tried to characterize” the Warren Court, Mr. Obama hints that the Constitution may be interpreted even more radically: in a way which would give the federal government power to tell the people what the feds (and states) must do on their behalf.
… Mr. Obama believes he can “break free” from the additional “constraints” placed in the Constitution by the founders. Toward that end, Mr. Obama’s nominees to the federal judiciary share his leftist worldview. From his “wise Latina” and “gay rumor” appointments to the Supreme Court, to his legion of federal appellate and district court nominees, the common denominator is the idea of appointing high-ranking judges who see the Constitution as a “living document.”
In President Obama’s words from The Audacity of Hope, the Constitution “is not a static but rather a living document, and must be read in the context of an ever-changing world.”
In his co-authored book, Keeping Faith with the Constitution, Liu, in Obamian fashion, posits a new method of interpretation: constitutional fidelity. “Fidelity” has a nice ring to it, but unfortunately, “what we mean by fidelity,” clarifies Liu, “is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.”
In other words, Liu is a “living Constitution” theorist who, like Obama, uses conservative-sounding words to support his radical positions. A Constitution that is interpreted by a few robe-wearing elitists “in a way that adapts its principles” is effectively no Constitution at all.
After many decades of “living Constitution” interpretation, the people have … READ ENTIRETY (A Clear Danger: Obama, a ‘Living Constitution,’ and ‘Positive Rights’; By Monte Kuligowski; American Thinker; 10/2/10)
In the Original Intent vs. Living Constitution debate is the issue of the folly known as Separation of Church and State; thus Leftists have brainwashed Americans to accept Judicial tyranny to mold the public question: Is allowing religion on tax supported institutions and/or property a government endorsement of religious faith?
If the courts were only allowed to use Originalism to validate or invalidate non-Amendment laws (legislative or executive regulations), the issue of Religion influencing government BUT NOT government influencing religion or religious practice would be understood as the intent of the Founding Fathers.
In effect American Leftists and atheists have managed to transform the Judicial Branch of the U.S. Government into the very tyranny that was intended to be avoided.
Alexander Hamilton in authoring Federalist #78 spells out the constitutional powers attributed to the Judicial Branch of government:
…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [Emphasis added (by Faith and the Law blog).]
During the past 60 years, many federal judges (followed closely by their state counterparts) have gradually strayed from the constitutional role of interpreting the law – providing “judgment,” to use Hamilton’s word – to actively legislating from the bench, especially in controversial areas of social policy. In other words, activist judges at the federal and state level have abandoned the Founders’ understanding of the constitutionally limited judicial function and have usurped the legislative function (without admitting it, of course) in order to impose a radically liberal vision for America. That vision includes such things as creating previously unknown constitutional “rights” to abortion and same-sex marriage, for example.
Since federal judges are appointed for life, their lack of accountability to the democratic will of the people makes such judicial activism especially dangerous. Hamilton argued in Federalist #78 that the Constitution’s “good behavior” qualification on judges’ lifetime appointments would suffice to keep them in line, but in practice it has not been used to rein in activist judges. It is ironic that the Founders proposed lifetime appointments for federal judges because they most feared overreaching by the legislative branch, while considering the judiciary the “least dangerous” branch.
For judges to effectively bypass that procedure by creating new constitutional “rights” out of whole cloth is at once unconstitutional and anti-democratic. A “living Constitution” philosophy is nothing less than an excuse for activist judges to impose their personal preferences upon an unwilling citizenry in the name of “evolving standards,” which they alone are entitled to discern.
… READ ENTIRETY (Judicial Philosophy of the Founding Fathers and the Constitution; posted at and by faithandthelaw; 5/11/10 – Derived from Focus on the Family, the updated link there: Judicial Philosophy Series)
The point I am attempting to drive home here is that Judicial Tyranny has usurped the Original Intent of the design of the Founding Fathers. In the realm of religion and politics Judicial Tyranny has become the despotic tool of America’s Left to transform America away from Christian morals. The Left has a vision of society/culture mirroring morality as dictated by a like-minded elitist few that feels people are not capable of leading a life that benefits what is good for humankind.
Founding Fathers viewed this mentality as statist tyranny; hence the common language in matters of dissolving any union with the British Crown and forming a rule of law under the authority of We The People constantly alluded to God’s superiority as the measuring stick for the morals of a good and effective government.
Leftists mindful of a societal paradigm shift realized the best way for people to depend morals established for the good of society rather than defined by the Creator of all that exists is to discredit the efficacy of the Judeo-Christian paradigm Western Society is based upon. ERGO Judicial Tyranny has step by step dissolved any effect Christian morals and culture has on government.
This whole exercise in a brief examination on the distortion of America’s Constitution at the hands of an activist-tyrannical judiciary is due to an excellent essay by Michelle Malkin about the systematic exercise of godlessness in America can be demonstrated in violent and inherent moral selfishness flowing from younger generations in America. Without a Christian infusion being allowed back into our culture without a tyrannical judiciary’s countermanding, this moral selfishness will be the moral fiber of America’s future.
One Nation Under Godlessness
November 14, 2014
Cheating. Bullying. Cybersexting. Hazing. Molestation. Suicide. Drug abuse. Murder. Scanning the headlines of the latest scandals in America’s schools, it’s quite clear that the problem is not that there’s too much God in students’ lives.
The problem is that there isn’t nearly enough of Him.
With the malfunction of moral seatbelts and the erosion of moral guardrails, too many kids have turned to a pantheon of false gods, crutches and palliatives. They’re obsessed with “Slender Man” and “Vampire Diaries.” Alex from Target’s hair and Rihanna’s tattoos. Overpriced basketball sneakers and underdressed reality stars. Choking games and YouTube games. Gossip and hookups. Facebook, Instagram, Snapchat.
It’s all about selfies over self-control, blurred lines over bright lines.
In a metastatic youth culture of soullessness and rootlessness, the idea of high school teens voluntarily using their free time to pray and sing hymns is not just a breath of fresh air. It’s salvation.
But leave it to secularists run amok to punish faithful young followers of Christ.
Last week, the Alliance Defending Freedom filed a religious freedom lawsuit against Pine Creek High School here in my adopted hometown of Colorado Springs. Chase Windebank, a senior at the District 20 school, had been convening an informal prayer group for the past three years “in a quiet area to sing Christian religious songs, pray, and to discuss issues of the day from a religious perspective.”
Windebank and his friends weren’t disrupting classroom time. They shared their Christian faith during an open period earned by high-achieving students. Other kids used the time to play on their phones, eat snacks, get fresh air outside, or schedule meetings for a wide variety of both official and unofficial school clubs.
A Pine Creek choir teacher had given permission to Windebank and his fellow worshipers to meet in an empty music practice room. No complaints ever ensued from other students or faculty. For three years, the group encountered no problems, according to ADF’s complaint. But in late September, Windebank was summoned to the assistant principal’s office and ordered to stop praying because of “the separation of church and state.”
The school singled out the young man of faith’s harmless activities and banned members of his group from discussing current issues of the day from a religious perspective during an open period in an unobtrusive meeting place.
As Todd Starnes of Fox News, who broke the story of the lawsuit last week, lamented: “Public school administrators and their lawyers have succeeded in suppressing and oppressing the Christian voice at Pine Creek High School.”
It defies common sense that in conservative-leaning Colorado Springs, home to a vibrant faith community and leading evangelical organizations, students would be reprimanded and deprived of basic constitutional rights. As a letter from local parents to the school district decried: “To what benefit does it serve a school to limit the ability for a student to pray with their friends, fellowship with their friends, or discuss daily events from a Christian perspective? It is obvious that School District 20 is taking a freedom FROM religion perspective, not a freedom OF religion perspective.”
Think about it: If the high-schoolers gathered in the cafeteria to listen to Billboard magazine’s No. 1 pop hit “Habits (Stay High)” — “You’re gone and I gotta stay high/ all the time/ to keep you off my mind” — school officials would have no issue.
If they lounged in a courtyard to joke about the latest girl-fight videos or off-color joke memes posted on Vine, no problem.
If they discussed the latest “Walking Dead” episode or napped in the library? All good.
But singing “Amazing Grace” and studying scripture? This subversion must be stopped!
How did we get here? And in Colorado Springs, of all places — not Berkeley or Boulder or Boston? Blame cowardice, ignorance and politically correct bureaucrats pledging allegiance to one nation, under godlessness, without religious liberty, and the occult of extreme secularism for all.
Constitution, Judicial Tyranny and a Moral Society
John R. Houk
© November 14, 2014
One Nation Under Godlessness
Michelle Malkin is the author of “Culture of Corruption: Obama and his Team of Tax Cheats, Crooks & Cronies” (Regnery 2010).
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