Consent of the Governed and Original Intent

 

 The original intent of a law, and the original intent of the Constitution or an Amendment, is what the people consented to through their representatives in the legislature when the law was passed or the Constitution and Amendments were ratified.  Subsequently changing the meaning of what was agreed to by a court decision is, in reality, governing without the consent of the governed.  In commerce, it's called bait and switch.  The "Living Constitution," basically says the Constitution says whatever 5 Supreme Court Justices say it says on any given day.

If the interpretation of laws that is no longer predictable, it means that there really is no rule of law.  We instead have a rule of unchecked judges with lifetime tenure.  This is a serious problem that has become obvious in the last 20 years.  Before we pass lots of interesting new laws, we need to acknowledge that we have no idea how any of them will be interpreted.  Judges will make the interpretation up as they go along.

Consent of the Governed and Interpreting the Constitution

If consent of the governed means anything, we have to apply the Constitution in the way the people who ratified it understood it.   Otherwise we are imposing laws nobody consented to, which is tyranny.  It's easy to say that people who object to decisions like Roe v Wade and Obergfell are just misguided bigots.  But in fact, they are objecting to laws invented by the courts that were not lawfully adopted by the legislature or consented to by Constitutional ratification.  The ends don't justify the means.  The means change the outcome.  If the Supreme Court interprets the Constitution in ways that nobody consented to, there is no limit to the Supreme Court's power.  There is also no binding precedent, because any precedent can be reinterpreted to mean something entirely different.  The Supreme Court becomes a Supreme Revolutionary Council with essentially unlimited powers and life appointments for members.

Let me give you an example of how this works.  The 14th Amendment was passed in 1868, when homosexual acts were illegal in every state.  If the legislators who voted to ratify the 14th Amendment had known they were ratifying same sex marriage, it wouldn't have passed.  Obergfell should have been decided on the full faith and credit clause.  Any marriage validly performed in one state must be recognized in all states.  This would have left the states in control of who could marry inside their borders, but forced all states to recognize same sex marriages performed elsewhere.  Such a decision would have been consistent with the invalidation of the Defense of Marriage Act (DOMA), which conservatives liked because of the states rights reasoning, even though the outcome didn't go their way.  DOMA was invalidated because the Supreme Court ruled marriage was a state matter, and federal law could not interfere with it under the 10th Amendment.  A ruling on full faith and credit would have been much more easily defended as consistent with the original intent of the Constitution.   If Obergfell had been decided on full faith and credit, doubt about the permanence of Obergfell, including this article, wouldn't be necessary.  Since using the 14th Amendment was a stretch, Obergfell is a shaky decision.

Trump Fights the Chicago Way

Open letter to Never Trump Diehards

What's at stake here is whether the Constitution means what it says. If the left wins, the Constitution, and the law, mean whatever the progressives want it to mean at the moment. The rule of law will be replaced by a dictatorship of regulatory agencies staffed with progressive "experts." The consent of the governed will not be required because progressives believe the people are too stupid and ignorant to give informed consent. This is what the 2016 election was all about. This is what we're fighting about now.

I understand you didn't believe Trump would be an improvement. I had my doubts too. But now we know he is a big improvement over Obama and whatever policy Hillary Clinton might have decided would benefit her, personally, the most. Trump recently opened the Alaska National Wildlife Refuge for drilling with no opposition! He dropped the Mother of All Bombs in Afghanistan, showing he has no stupid rules of engagement.

This is not the time to become picky on style. The Pravda Press has been calling conservatives things like Nazis, fascists and racists for years with no basis in fact and no fear of retaliation. They lately accused Trump of treason and incest without any credible evidence. I don't blame him for counter attacks on twitter. Enough is enough. Being better than they are brought us to losing to Obama twice.

Obama ran a completely outlaw regime that showed every hole in the Constitution progressives could exploit. They were very close to irreversible damage. We can't afford to be nice guys any more. We're fighting Capone, the Chicago way.

Voters Revolt as Governments Make Decisions For Them

The discontent in Western democracies is due to their becoming less and less democratic.  The problem is increasingly arbitrary decisions governments are making supposedly to take care of their people.  Progressives world-wide seem to believe that large segments of the population are too ignorant and stupid to make their own decisions.  This runs counter to John Locke’s basic principle that government requires the consent of the governed.
 
In the US, consent of the governed is the basic principle the country was built on.  John Locke first coined the phrase as part of his “Two Treatises on Government,” published in 1690 to justify replacing King James II of England with William and Mary in 1688.  So it’s important in Britain as well.  Consent of the governed is what allowed Parliament to legislate the Act of Settlement in 1701, which set the rule of Succession for the British Monarchy that’s still in force today.
 
Locke thought that government exists to preserve the life, liberty and property of each person it governs.  This phrase, edited to make it more user friendly, was used in the Declaration of Independence in 1776.  The chief purpose of government in Western democracies today is to regulate life, constrict liberty and redistribute property, usually without the consent of the governed.
 
Current US government practice is that almost all new laws that pass Congress are passed as shells, which are filled in later by regulatory agencies, executive orders and court rulings.  The problem with regulations, executive orders and court decisions is that none of the processes used to make these things is designed to get the consent of the governed.  Conversely, the voters can’t hold the regulatory agencies, executive departments and judges responsible for their actions.  In the US, regulatory boards are appointed by the president with the advice and consent of the Senate, to fixed terms of office.  Judges are appointed by the president and confirmed by the Senate for life terms.
 
While I’m not quite as clear about how things work in Europe, it appears to me that the European Union does business the same way.  Most of their important policies seem to be the result of regulatory agencies or court decisions.  Voters don’t get to hold the decision makers accountable.
 
Bypassing legislatures makes the flow of new regulations arbitrary and largely unpredictable.  What are, in effect, laws come out of murky processes in back rooms at regulatory agencies or government executive departments.  Then they are subject to review in the courts where the decisions are also hard to predict.  The process is like a ping pong match, and the ball bounces around with almost no attempt to gain the consent of the people who will bear the burden of the new rules.  The chaotic nature of regulatory processes inhibits long term private sector investment.  You’re not going to invest in something which takes 5 or 10 years to pay off if it could be regulated out of existence in 3 to 6 months.
 
In the US, we have an especially virulent form of this chaos called the “Living Constitution.”  Most people probably think that the Constitution is like a contract.  The meaning of a contract is fixed when the contract is signed.  So logically, the meaning of the Constitution or a Constitutional Amendment should be fixed at the time it’s ratified.  The “Living Constitution” doctrine says that the meaning of the Constitution changes over time, based on changing modern conditions.  This works out as an excuse to alter the Constitution in the Supreme Court by finding new meaning in the Constitution to suit progressive fashion.  In the past, Justices had to decide based on what the law or the Constitution said, whether they like it or not.  Now Justices can decide cases based on what they would like the law to be.
 
The president wields almost all of the power of the modern regulatory state in the US.  He or she issues executive orders, in effect controls all regulatory agencies and appoints all judges, including Supreme Court Justices.  The appointment of “Living Constitution” Justices was extremely important to the left.  Because of Antonin Scalia’s death and the age and ill health of 2 or 3 other Justices, whoever won 2016 was going to be decisive in deciding whether the “Living Constitution” doctrine prevailed or not.  The normal ways to change the Constitution require 3/4ths of the States to ratify an amendment.  Since Republicans control both legislative chambers in 32 states, that isn’t going to happen for progressives.  Their only shot at big changes was cheating with a “Living Constitution” in the Supreme Court.  That’s why Trump published a list of 21 judges he would consider appointing to the Supreme Court.  All of them were original meaning judges, not “Living Constitution” judges.  This list gave conservative Republicans, like me, the confidence to vote for Trump no matter how bad his manners were.  Voting for Hillary would have erased the Constitution by allowing it to be completely redefined.
 
President Obama was especially energetic in concentrating as much power as possible into the Oval Office.  Obama used his pen and phone without restraint in his second term to avoid having to deal with Republicans in Congress.  He created precedents that were safe only if Hillary Clinton succeeded him.  The Democrats went all in, betting that Hillary Clinton would win in 2016 and secure Obama’s legacy.
 
What happened was a Trump victory.  All of the pen and phone power Obama concentrated in the Oval Office will be used to undo the entire hope and change of the last 8 years.  Trump will make at least two Supreme Court appointments.  The Justices Trump appoints will be deciding cases for about 20 years.
 
This sudden disastrous outcome has completely unhinged the American left, and even some of the Republican establishment.  Instead of permanently remaking the country, the left lost everything to a loud mouthed reality TV star with a lower class accent and abrasive manners, who insults the press constantly with tweets at 3 AM.  The Us mainstream media dreams of ways to bring down Trump because they have no other way to fundamentally remake America the way they planned.  They have even gotten as far as speculating about a CIA mutiny or a military coup in the US.  The Pravda Press is in complete denial, looking for any way to roll the dice again for even a small chance to undo the damage..  The left's desperation measures the magnitude of their reversal.