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.

Conservative View of Parkland Shooting (Summary)

Federal Program Protected Parkland Shooter From Arrests

There was a federal program created by the Obama Administration to end the "school to prison pipeline." The Trump Administration is trying to cancel the program, but this is being hampered by legal action and administrative delays.

The program subsidized school counseling to replace arrests for criminal offenses on school grounds. This program meant that the Parkland shooter was counseled instead of arrested numerous times. The result was that the Parkland shooter was able to buy guns, because he lacked an arrest record, and the FBI couldn't find him, and didn't take tips about the Parkland shooter seriously, because there was no arrest record. Here's the best link on it, but there are more, if you need them.
https://www.realclearinvestigations.com/articles/2018/02/28/obama_administration_school_discipline_policy_and_the_parkland_shooting.html

Here are some more links to how the program was developed, and how it was intended to work. Please note the emphasis on limiting arrests, regardless of the crimes committed. Here's 5 more links on the program. Some are in favor, some against:
https://www.realclearinvestigations.com/articles/2018/04/10/sperrybroward_art.html
https://www.tolerance.org/m...
http://neatoday.org/2015/01...
https://www.usatoday.com/st...
https://www.city-journal.or...
https://veneremurcernui.wor...

Gun Restraining Orders Are the Best Way to Address the Problem

School shooters generally have noticeable mental and social problems.  The system generally knows about these individuals, like the Parkland shooter, but claims it can’t do anything about them.  First, authorities need to arrest and jail them if they commit assaults on teachers or other students.  That gives them an arrest record and warns the potential perpetrators not to go any farther.  But now there’s a new tool, a gun restraining order.  It gives authorities something between jail, or involuntary commitment in a mental institution, and letting a time bomb walk free.   After a hearing, a judge can remove the right of a defendant to own weapons.  The burden of proof is less than for involuntary commitment.  This was recently enacted into Florida law.  Gun Restraining Orders are supported by the NRA.

The Purpose of the Second Amendment

The purpose of an armed US populace is to check the federal government's ability to exceed its specified powers under the Constitution.  This argument was put forward as a rebuttal to arguments against the Constitution, that the federal government would have so much power that it would oppress the people and would be able to impose a military dictatorship.  See the last 2 paragraphs of Federalist Paper 46 in this link:

http://avalon.law.yale.edu/18th_century/fed46.asp

The last two paragraphs of the link say that the Federal Government will not be able to abuse its power because the residents of America, unlike the residents of Europe, are armed with military grade weapons and would be able to organize themselves into militias that would outnumber the federal army.  Some argue that Federalist paper 46 is not the same as the 2^nd Amendment.  However, the same man, James Madison, wrote both of them, about 18 months apart.  Federalist Paper 46 was published 29 January 1788.  The Bill of Rights was introduced in Congress on June 8, 1789.  I think that Federalist Paper 46 is a good indication of James Madison’s intent in writing the 2^nd Amendment.

For those of you who would argue that people armed with AR-15s and other "assault weapons" would not be able to fight a federal army today, please consider the amount of time it took the Iraqi Army to take Mosul, even though it was using large amounts of US artillery and air strikes. It took over 9 months, from October 17, 2016, to late July, 2017, to take Mosul from ISIS. ISIS was armed mainly with AK-47 rifles (true assault rifles) and improvised explosives, with a few captured machine guns and mortars. I think this shows that the 2nd Amendment is still an effective check on the Federal Government.

You should also consider that there are at least 5 million privately owned "assault weapons" in the US, and there are over 300 million privately owned guns overall. This means that there is more than one gun for each US resident. There is no way you can confiscate all of the guns out there. Don't bother to deny that's what you really want. We don't trust you. "If you like your doctor, you can keep your doctor." Malarkey on steroids. The left lies for a living.

The typical pro-gun voter believes the 2nd Amendment is a guarantee that the rest of the Bill of Rights will not be canceled unconstitutionally by the federal government. They view any effort to curtail gun rights as the first step in an unlawful move towards dictatorship. Since the left is already trying to cancel Freedom of Religion and Freedom of Speech in places the left controls, like college campuses, pro-gun voters increasingly feel the left is not dealing in good faith. They are likely to resist violently any effort to confiscate guns or have the Supreme Court reinterpret the meaning of the 2nd Amendment. I don't see any way any grand compromise can be reached on this issue.

Self Defense is a Natural Human Right

Both the Founders and a substantial number of people today believe that self defense is a natural right.  Both the Founders and many people today believe that self defense requires military weapons.  If you don’t believe that, ask yourself how Pol Pot and the Khmer Rouge were able to kill about a quarter of Cambodia’s population, about 2 million men, women and children, in the killing fields between 1975 and 1979.  Cambodians had no weapons to defend themselves with.  You say that could never happen in the US.  Before 1960, almost everyone would have said it could never happen in Cambodia either.  The Khmer Rouge Communists were an unprecedented event in Cambodian history.

https://en.wikipedia.org/wiki/Khmer_Rouge_Killing_Fields

Who's Responsible for Poor Civics Education? Liberals Who Control It!

With the rise of Trump, it’s popular for liberals to complain about the sad state of civics education in the US today.  I think the sad state of civics education is the result of liberals not wanting the populace to have a civics education.  The complaints are ironic to the point of absurdity.

Liberals control education in the United States.  Any failures in education are liberal failures, either by neglect or by design.  I believe the failure of the US education system to teach civics and relevant history is the desired result of the liberals who control it.  It's difficult to reconcile the "consent of the governed" with regulatory overreach, executive orders and rogue court decisions which obviously violate existing laws and the Constitution.  Congress, an elected coequal branch of government, has been cut out of most processes.

Notably left out of the civics classes that are taught are the key writings and historical events that influenced or explained the Constitution.  For example, John Locke wrote “Two Treatises on Government,” published in 1690, to justify the overthrow of King James II in the Glorious Revolution of 1688.  Locke advanced the idea that government existed by the “consent of the governed,” not by the divine right of kings.  Locke also said that government’s function was to preserve the “life, liberty and property” of the people it governed.  Another example is the “Federalist Papers,” a group of 85 articles and essays arguing in favor of adopting the Constitution written by Alexander Hamilton, James Madison and John Jay under the pseudonym Publius.  While the Federalist Papers are considered to be an “incomparable exposition of the Constitution” according to one historian, the odds are that most civics classes never read even one of them.

Regulatory agencies today have executive, legislative and judicial functions all rolled up into a single agency.  There is no separation of powers.  They make the rules, decide who to prosecute for breaking the rules and then conduct hearings in their own administrative proceedings.  They can decide to declare war on coal or regulate the internet with no legal basis for doing either.  Congress, supposedly the legislative branch of the federal government, can't stop them.  According to the Constitution, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  Clearly, administrative agencies are legislating.  Anyone who studies the Constitution is going to notice a huge disconnect between the Constitution and current practice.  It's a lot easier not to teach civics.  That way, teachers don't have to explain why we're not following the Constitution.  Since most teachers are liberals, it would be against their political interest to point out that we aren’t following the Constitution.  Voters might get the idea that regulatory agencies should be reined in.

Executive orders have become very popular with the current administration.  The way President Obama behaves is very close to the behavior of Charles I (1600-1649).  Charles I tried to rule without Parliament for 11 years. President Obama used his pen and phone to rule by decree. Charles thought he should be an absolute monarch by divine right. President Obama believes he is "on the right side of history," acting with "the fierce urgency of now."  President Obama believes he can grant exemptions to any law at any time, like refusing to collect Obamacare employer mandate taxes or the ordering the administrative enactment of the Dream Act for illegal aliens brought here as children after it failed to pass Congress. I hope we can solve our problems with the Smartest President Ever without following the historical pattern of Charles I. Charles' insistence on absolute power lead to the English Civil War. Charles I lost the Civil War he initiated by trying to arrest 5 members of Parliament on the floor of the house. Victorious Parliamentary forces executed Charles I in 1649.  Oliver Cromwell, the Parliamentary Army’s commander, became a military dictator in 1653 and held power until his death in 1658.  

Please notice that most readers have never heard of Charles I.  This history, England from 1625 to 1776, is a vital part of the background of the Constitution.  The 2nd Amendment is designed to make military dictatorships, like Cromwell's, impossible to impose on the United States, because an armed populace would be able to resist.  The clause that says the president "shall take Care that the Laws be faithfully executed...." is aimed at Charles I and his son, James II, who were in the habit of ignoring laws passed by Parliament.

Rogue court decisions are another area where civics becomes hard to teach.  The Constitution is a contract between the states and the federal government.  Article V. has two methods of how to change the Constitution.  Both methods require 3/4 of state legislatures to ratify changes.  Most people would agree that contracts can't be changed unless both parties to the contract agree to the change.  Unfortunately, liberals believe the Constitution is a "living document."  This means that federal courts can reinterpret the Constitution to mean something different than what was originally agreed to.  This means that the "consent of the governed" is no longer necessary to change the Constitution.

Let's look at a recent example.  The 14th Amendment was passed in 1868.  The Republicans who wrote it meant it to protect recently freed black slaves from abuse from state laws and state courts.  Here's the key sentence: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  In 1868, homosexual acts were illegal in every state.  In 1868, the definition of marriage was considered to be a state issue.  In 1967, the "equal protection of the law" clause of the 14th Amendment was used to strike down state laws prohibiting mixed race marriage in Loving versus Virginia.  I think this is a logical extension of the original meaning of the amendment, which was definitely about race.

In 2016, the 14th Amendment was used to mandate same sex marriage for all states in Obergfell versus Hodges.  This is a "living Constitution" decision in two ways.  Since in 1868 homosexual acts were outlawed, the ratifiers of the 14th Amendment could not have known they were voting for mandatory legalization of gay marriage.  If they had known, the 14th Amendment would not have passed.  Also, since generally marriage is a state, not a federal, issue, the case should have been decided on state grounds.  Under the "full faith and credit" clause, marriages performed in one state must be recognized in all states.    Deciding the case this way would have allowed state legislatures to decide for each state how to define marriage.

Changing the definition of marriage is a very big change.  It seems to me to be something to be resolved by legislative processes after full debate.  Changing the Constitution to mandate same sex marriage for all states, overriding several state constitutions and referendums, is really a violent remedy.  Making a change this big without the consent of the governed is very difficult to explain in rational terms to students.  It's a lot easier to avoid teaching civics.

 Liberals control education completely in the US.  Education failures in the US are the result of liberal design or liberal neglect.  Teaching civics is avoided because current practice deviates substantially from original Constitutional design. Preserving ignorance of the Federalist Papers, John Locke's "Two Treatises on Government" and the history of England from 1625 to 1776 allows liberal changes in government to go unchallenged by a population too ignorant to realize they are being cheated. 

Original Article:

http://foreignpolicy.com/2016/10/06/america-is-turning-into-a-confederacy-of-dunces-united-states-presidential-election-trump-civics-education/