It's more or less an accurate statement insofar as the entire Bill of Rights was designed to apply to the Federal, not the state governments. I think the larger point that needs to be appreciated -- it's not just that "religion" was left to the states -- but that the original US Constitution was, by today's standard, a document that left the Federal government with an extremely limited reach. In many ways the US Founding from 1776-1791 was something "revolutionary," "anti-traditional," "enlightened" and simply "not Christian" (at least not in the traditional sense, certainly not in the reformed Calvinist sense).
Yet, the anti-traditional revolutionary implications of the American Founding are tethered greatly by the limited reach of the US Constitution as originally understood. It was a secular Godless document, but one whose secular godlessness was powerless to enforce against state and local governments.
In that sense, the American Founding was a very limited event. It was limited by the anti-statist, limited enumerated powers vision of the framers of the original Constitution. In other words, whatever was subversive about the ideals of the American Founders, they originally limited their own ability to "subvert" much of anything (including slavery) by establishing a very weak federal government.
90 comments:
In that sense, the American Founding was a very limited event. It was limited by the anti-statist, limited enumerated powers vision of the framers of the original Constitution. In other words, whatever was subversive about the ideals of the American Founders, they originally limited their own ability to "subvert" much of anything (including slavery) by establishing a very weak federal government.
Well---and apologies for not crediting whatever commenter suggested the idea---America was already a "Christian Nation" in some sense when the [weak, as you put it] Constitution was ratified, and ratification didn't change much of any of that.
[Although you've rightly noted that some states softened their stances on established religion in their new constitutions after the Founding, no doubt influenced by the mellowness/vagueness of the Bill of Rights.]
But I must add that re slavery,
Article I, Section 9 of the Constitution reads: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..."
...was quite subversive, giving constitutional protection to the slave trade for only 20 years.
And indeed, Congress banned it as of the first day it was constitutional.
The internet says:
"In an annual message sent to Congress in December 1806, Jefferson urged the representatives to prepare legislation outlawing the slave trade.
"I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority, constitutionally, to withdraw the citizens of the United States from all further participation in those violations of human rights which have so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe."
The law of March 2, 1807, An Act to Prohibit the Importation of Slaves, was passed well in advance of the 1808 deadline, and its effective date was---yes---January 1, 1808.
This speaks well of America's Founding era in some real sense, well even of that slaveholding bastard Jefferson.
And it seems everybody's crystal balls were operating in very good order, that to end slavery overtly and not subversively would require a Great Civil War, with perhaps at least a half-million dead. We might call them cowards for trying to avoid that, hoping that they could achieve the end of slavery by subversive means instead, but we were not in their shoes.
One of my conservative professors used to say that the Civil War was used to centralize governmental power. What do you think? And why?
Perhaps politically, Ms. VDM. Tariffs, blahblahblah. But South Carolina seceded immediately after his election, even before Lincoln was inaugurated. It was not fear of tariff stuff---you can always work out minor issues---Lincoln was on record as against the moral obscenity of slavery, and the Republican Party had formed only a dozen years before over the issue.
The writing was on the wall that the zit of slavery was gonna get popped.
And even if it was only a minority of Union soldiers singing
John Brown's Body lies A-moulderin' in the grave
His truth is marching on...
...that was enough. God was on the Union's side, and they would never quit. For as even that slaveholding bastard Thomas Jefferson wrote about slavery:
I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.
His justice had awoke.
Would I have fought and eventually [probably] been slaughtered for the Union cause? For the freedom of the black man? I can only wish I'd have had such courage. I can't honestly tell you I would have. In fact, honestly, I confess I doubt it, Angie. I'm too smart for that. You too, probably.
But it was those men who won the war, freed the slaves, &c., &c. We honor their graves now and then.
The Constitution is an overwhelmingly secular document, but not completely. The preamble, for example, contains a reference to "blessings" -- something that probably resonated with its original drafters as a reference to the idea that our liberties don't come from the government, but from a transcendent source -- God.
Also, the original federal Constitution did include one very important statement regarding religious liberty -- one that was completely revolutionary for its time and which flied in the face of the practice of several of the states at the time: the prohibition on religious tests for federal public office. It is a testament to the success of this part of the Constitution that we rarely think of it. But for its time, this was an absolutely unheard of idea. Even regimes with a relatively high level of religious liberty at the time -- Great Britain, for example -- there were (and continue to be) religious tests for holding government office.
But, in the overwhelming majority of circumstances, the federal Constitution, even after the ratification of the 1st Amendment, left the states alone in regard to religion. That only changed at the end of the 19th century with the Supreme Court's flexing of the power of the 14th Amendment.
Mark
Re: blessing
Although you are probably generally right about how many or most of the founders would have used the word, it is also well grounded in secular use as well as by religions other than Christianity. It also apparently has a Germanic pagan origin:
Online Etymology Dictionary
O.E. bletsian, bledsian, Northumbrian bloedsian "to consecrate, make holy," from P.Gmc. *blothisojan "mark with blood," from *blotham "blood" (see blood). Originally a blood sprinkling on pagan altars. This word was chosen in O.E. bibles to translate L. benedicere and Gk. eulogein, both of which have a ground sense of "to speak well of, to praise," but were used in Scripture to translate Heb. brk "to bend (the knee), worship, praise, invoke blessings." Meaning shifted in late O.E. toward "to confer happiness, well-being," by resemblance to unrelated bliss. No cognates in other languages. Blessing is O.E. bledsung.
As in so much of the founding public documents it appears that language was chosen that had the widest possible appeal.
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Every serious student of American History---especially those who focus on the Founding-Era--owe it to their self to attend to
Shain’s book. And, no, I'm not being paid to refer to it so often.
This short blurb by Jonathon Rowe knocks hard on the door to Shain's thesis which includes so much about how reformed-protestantism influenced the consensus during those days.
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Shain also shines light on how some continental thinking was coming to bear on American thinkers in that same period. A great deal started to surge up in the final decade of the eighteenth century.
Maybe Johathon Rowe is well versed on Shain and his work?
As is true today, I suspect the Founders were careful not to divulge the entirety of their objectives for fear the entire experiment would have been rejected. by the majority which was about 95% rural.
I am familiar with Shain's book and plan on reading it.
From what I've read I like his perspective. What I DON'T like is the way some Christian Nationalists/theocrat types have misused his thesis.
I just got done debating one of them.
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I'm looking for a used copy of his, The Nature of Rights at the American Founding and Beyond (Constitutionalism and Democracy) .
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The best price I've found is $45.00. A little rich for me. Anyone know where I can get it for a lot less?
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I doubt that a majority of professional historians and constitutional scholars would agree with Mr Rowe's assessment of the Constitution as anti-statist. Indeed one might view the Con. as the central Federalist document, which set specific limits on the power of Congress. (see section 9 in Article 1). For instance, the states could not revoke habeas corpus rights (that didn't bother BushCo too much).
In the Fed. papers, Madison and Hamilton repeatedly address the potential dangers of democracy unleashed. They were no Lockean-states rights types. Really the raison d'etre of the Senate (and electoral college) and Judiciary consists in mitigating the power of the electorate. The First Amendment itself embodies Madison's secular principles. And the FA still holds, notwithstanding Scalia and Herr Rehnquist's attempts to replace it with the decalogue.
The First Amendment itself embodies Madison's secular principles.
Perhaps, but that's not how he sold it, nor was it the terms under which it was bought by the other Framers. "Secularism" is not the same thing as "pluralism," and that's what the Framers put in.
http://www.beliefnet.com/resourcelib/docs/47/Debate_on_the_First_Amendment_House_of_Representatives_1.html
I doubt that a majority of professional historians and constitutional scholars would agree with Mr Rowe's assessment of the Constitution as anti-statist. Indeed one might view the Con. as the central Federalist document, which set specific limits on the power of Congress.
Federalism. In fact, it runs through the First Amendment debate above, that the central gov't kept its hands off the states' prerogatives re religion.
In fact, the Framers voted down Madison's attempt to inject the word "national," as they saw the government as "federal," as in "federation."
Nice try, tho, Mr. J., although your representations of Justice Scalia and "Herr" Rehnquist are infantile, typical of your brand of politics. When you can't pound the law or the facts, pound the table.
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Here’s Shain an acclaimed historian who specializes in Founding-Era history.
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I'm no expert, Tom, but, I don't think anything is gained by dissing another participant as juvenile. It hurts you more than it does the other.
I'm thinking the idea was that there were major distinctions between the central government and the local. According to Shain, "... Alexander Hamilton declaimed that 'the ancient democracies, in which the people themselves deliberated, never possessed one feature of good government.' Jefferson added that republican governments could only be implemented when 'restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township.'"
J, that the original constitution only granted limited powers to the Federal government I think is very compelling evidence that it was anti-statist.
But I'm honestly curious ... Why do you see it otherwise?
You're mistaken, once again, TvD. Federalism is not at all synonymous with states rights. That you think so reveals your usual infantile conservative interpretation of the American revolution (or non-reading of the central documents--including the Constitution, apparently. Like try Article 1, again. And that nice section on habeas corpus). Federalist paper 10 in fact sounds near to Hume's thoughts on preventing "factionalism."
"Infantile" also describes someone who mistakes a right-wing theocrat such as Rehnquist for a protector of the First Amendment.
Well most of what the Federal government does that makes its budget so big is passed under Art. 1, Sec. 8, Cl. 3, known as the "Commerce Clause." Originally understood that clause gave Congress extremely limited power to enact direct regulations on commerce "among the several states...."
If we went back to the original understanding of said clause, the entire New Deal and everything that came after it, including the Federal War on Drugs, would be unconstitutional. At least with Prohibition of Alcohol the Federal government understood it needed a constitutional amendment to enact it.
That's what I mean by anti-statist. The kernel of truth in the opposite position is, as anti-statist as the original Constitution might seem like us today, it was not anti-statist enough for the Anti-Federalists.
Much of this had to do with the idea that the FFs hated "tyranny," and they reasoned, tyrants ruled from the top down (ala divine right of Kings). Hence as little top down power as possible was desired.
Likewise, since "religion" is not an enumerated power, if the federal government wants to make laws that "touch" religion, it must do so pursuant to its enumerated powers like the Commerce Clause. A Commerce Clause that permits the federal government to do what it currently does also permits it to make lot of laws that "touch" religion, but still no laws that "respect an establishment" of religion.
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At a time when individualism was an almost un-thought of concept, the Constitution was ratified with the Bill of Rights which came to be the very thing that sets the central government apart from the states and local communities and gives it superior standing..
My question deals with what thinking we know the Founders had that would show they knew exactly what they were doing. Was our U.S. Constitution created to be truly anti-statist? Or is that just how things have worked out?
Article 1 Section 8 allows Congress "to regulate commerce" does it not; it also allows Congress to approve of taxes of various sorts (as does 16th Amendment). So there's no clause which would imply that the Founding Fathers approved of a RonPaul-bot like libertarian-phunn zone.
Jefferson himself favored regulations on finance and banking--and Jefferson, while opposed to Hamilton's banking schemes, did not join with the anti-Federalists on all topics. The Fed. vs Anti Fed. battle (resulting in the Constitution) was a bit more detailed and complex than the ACsters make it out to be.
I'm no expert, Tom, but, I don't think anything is gained by dissing another participant as juvenile.
Good point, Pinky. But I was only referring to ideological pap like "Herr" Rehnquist, the Nazi analogy being quite clear. And infantile.
Pinky writes:
"At a time when individualism was an almost un-thought of concept..."
Although that's Barry Shain's thesis, and although I meself take the federalism view of the First Amendment ["Congress shall make no law..."], individual rights certainly were contemplated at the time.
The original proposal was:
Article 1. Section 9. Between paragraphs two and three insert "no religion shall be established by law, nor shall the equal rights of conscience be infringed."
Although at least one Framer saw the current controversy quite clearly:
[Peter] Sylvester had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether.
Don't worry, Mr. Sylvester. It could never happen!
If you notice, Tom, I did use the modifier, almost.
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Pinky, I just wanted to be fair to the discussion, since I've been arguing the "Congress shall make no law" riff lately. Your comments via Shain have been invaluable, Pinky.
In fact, your cite of Shain on
Jefferson added that republican governments could only be implemented when 'restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township.'"
echoes the ancient Greeks on the polis, that there was an ideal size for one, about 15,000 inhabitants as I recall. After that, it's no longer a community, it's a bunch of strangers.
Oh, and BTW, my comment didn't go through the other day---I looked up my usual haunts for you like half.com and some new ones too, but $45 is rock bottom for Shain's "The Nature of Rights at the American Founding and Beyond."
In fact, the cheapest price "used" was $54!
Keep on rockin', Phil.
Pinky, don't mistake TvD here for the level-headed moderate. He's more like the resident Mitt Romney supporter (or is it David Duke).
Infantile are those who ignore the facts of Rehnquist's life and career, and his right-wing skullduggery.
Perhaps we could dig up some of Rehnquist's pro-segregation comments from his younger days, after he graduated from Stanford or other bon mots from the recently published notes. There are even some rumors the aged Herr Rehnquist was a....Girly Mann...or poofter as they say in Deutschland.
J,
I think you are reaching.
(1) Your Rehnquist comments are off-topic.
(2) Rehnquist's legal opinions are not explicitly synonymous with a personal agenda.
(3) Tom (imo) has not earned a reputation as a supporter for "right-wing skullduggery".
... and even if all that were factual, it is my experience that when ad hominems are applied to compel others to favor a position, it is because at least one of the two parties have abandoned reasoned discussion / debate / argument.
You've demonstrated some well reasoned responses on this blog. I look forward to more ... but please do try to avoid the demonising.
TvD started with the ad hominems--well, after conflating Federalism with states' rights.
For that matter, Rehnquist's rightist agenda does pertain to this thread.
--The Rehnquist court showed little respect for the separation clause of FA.
--Rehnquist consistently supported corporate power and management.
--The decision in Bush/Gore also revealed the power of Judicial review. The court prevented another legal recount-- and Gore probably won. In fact judicial review was not specified in the Constitution, but due to Marshall, a decade or so after the Con. was ratified.
Jefferson's nightmares concerning a quasi-aristocratic American Inns of Court have been realized with the Rehnquist/Scalia SCOTUS.
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Barnes & Noble membership plus one time 20% discount coupon and I ordered the book today at around $30.00.
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We shall see what we shall see when it arrives.
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Americans have to be pretty used to bantering and repartee--especially on the 'Net.
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When someone disses us, we do well to ignore it and to move on into the future. Otherwise, it's what we call getting hung up on the past.
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It's a lesson I'm trying to learn.
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J, how some one else behaves was not the topic of my comment. I was responding to your behavior.
I maintain that redicule directed at Rehnquist (or others) is off topic, and inappropriate. This is a blog examining the role religion played in our Nation's founding. It is not intended to be an Op-Ed for political commentary / activism.
However, there are some sites that focus on that ... here's one example and here's another ;-)
Actually, you're the one making the non-sequiturs, babbott.
The original post concerned the Constitution (not religion, at least directly), which Rowe claims affirms states' rights, which I don't think is a correct interpretation--especially given Madison's role as a Federalist, and the various sections setting limits on the power of Congress.
The comments re Herr Rehnquist, commonly read as a states-rights activist, follow from that.
As far as religion and corrupt judges go, however, google Caiaphas (or, better, Dante and Caiaphas).
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As long as the repartee continues, J does seem to have a point.
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Let's get beyond this swordplay.
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If the gentleman had a point he would make it, instead of junking up the place with lefty screed.
The price of the Constitution for the anti-Federalists was the Bill of Rights. And in case they missed anything, they capped it off with the Tenth:
"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."
Phil, I happy to put an end to this back-n-forth. I've had my say and it appears I've been understood ... and I've also understand J's objections.
Tom, nice summation ... although, I'd rather not see any political or religiuos rhetoric ... "lefty" or "righty ;-)
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In early American parlance, Thankee Kindly.
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I think a very good question has been uncovered that deals with the Constitution and the Bill of Rights and especially the Tenth.
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Let's go to work on that between the sides involved.
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I do not have a stand; but, I am suspicious of what has been said so far.
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Maybe we can learn something?
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It would be "nice" to learn something, yes. And thanks to all who have 'added" to the conversation, so far.
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In fact, very "nice". It's the main reason I'm here.
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I have learned a lot so far.
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What I've been thinking about this idea of the Constitution has to do with the law as it is governed by precedent.
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Most every administration as well as most every congress has taken steps to establish particular precedents that have, for the most part, become law.
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How is it that our Constitution allows for that?
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Regarding the reason I come here.
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It has to do with my interest in learning.
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But, I want to add that I'm not the least bit interested in learning (studying) for the sake of learning (studying). That would be a waste of time for me.
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My interest in learning (studying) is more about gaining an understanding of meaning. I think learning is a practical thing that helps me give meaning to my life.
I appreciate the hard work others do in their research and study.
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I have come to be particularly interested in American history. I talk about it to my family and friends a lot.
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You're not a logician TvD. And Im quite sure you're no historian.
Let's reiterate : the Constitution is no states rights document (and Madison was a Federalist, one key point in favor of my claim, among others). Article 1 starts by enumerating limits on legislature (ie the states). The POINT I made from the beginning. So you're either lying, or dyslexic.
Left? Heck IM not even a Democrat. I suspect TvD's one of those Mitt Romney like dudes who considers McCain a "liberal."
Article 1 starts by enumerating limits on legislature (ie the states).
What the hell are you talking about, man?
What I've been thinking about this idea of the Constitution has to do with the law as it is governed by precedent.
Phil, you may find this interesting, since Clarence Thomas is a "natural law" guy, while Scalia is a "textualist."
http://www.claremont.org/publications/crb/id.1241/article_detail.asp
The thing about precedent is that at some point we need stability. But on the other hand, Plessy v. Ferguson[1898], which legalized "separate but equal," stood until 1954 and Brown vs. Board.
So obviously, if something was decided contra the Constitution, even 50 years as "precedent" isn't enough to hold it.
Most every administration as well as most every congress has taken steps to establish particular precedents that have, for the most part, become law.
How is it that our Constitution allows for that?
Well, that's what legislatures do. The question is how much the courts can rewrite laws under "evolving standards of decency," what they call the "living constitution."
[Note my lack of pejoratives: I didn't call them "Comrade" or tyrants or anti-American enemies of the Constitution, even if they are.]
;-)
J wrote: "Article 1 starts by enumerating limits on legislature (ie the states)"
Article I begins with Section I which qualifies that is meant by legislature.
"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."
Can someone explain why limits placed upon the Congress of the United States were intended to apply to the states?
Article 1 starts by enumerating limits on legislature (ie the states).
What the hell are you talking about, man?
Hint: Starts with C. Rhymes with pollution.
The pro-states rights people (led mainly by Lee, I suspect--great uncle of RE) did not care for Madison and Hamilton (especially). Even Jefferson usually sided with the anti-fed/states rights side (though not always--). Mad. and Jeff. are not really allies until Jefferson's campaign against Adams, perceived as Tory by s-r/south. Mad. had left the Adams/Hamilton/Jay Fed. faction by that time, and supported Jeff.
Adams/Ham did manage to get their boy Marshall and the SCOTUS rolling--against the south, really: Marbury vs Madison actually a victory for Marshall and the Feds.
The Civil War was already starting about 1800 or so, and the states rights gang were already suggesting secession, early on. Let's not forget the aged Jeff. and Andy Jackson enjoyed a sunday social or two together.
Verstehen Sie? Gut.
Pinky: "Most every administration as well as most every congress has taken steps to establish particular precedents that have, for the most part, become law.
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How is it that our Constitution allows for that?"
The source of the power of precedent is found, not in the text of the Constitution, but in the common law tradition we inherited. Past decisions are consulted to determine the appropriate response to current situations. In a purely common law system, the law is the past decisions. In a mixed system it is the past decisions, the written law, and other decisions interpreting that law. Administrative law adds another odd angle to this.
This is generally a very conservative approach, looking to the wisdom of past practice as today's law. Adherence to precedent means we do things the way we have always done them. I know of nothing in the text of the Constitution that gives power to precedent, but it was central to the legal context in which the Framers worked.
http://law.jrank.org/pages/10540/Story-Joseph.html
This may be of help, or spread more confusion.
"In November 1811 President JAMES MADISON appointed Story, at the age of only thirty-two, to the U.S. Supreme Court. Madison hoped that Story would help move the Court in a more democratic direction, correcting the aristocratic tendencies of the federal bench, which had been dominated by the Federalists. In particular, Madison sought to check the influence of Chief Justice JOHN MARSHALL, whose nationalist philosophy led him to construe federal powers broadly. THOMAS JEFFERSON was opposed to the appointment, however, believing that Story did not subscribe to the Democratic party belief in according deference to state governments.
Jefferson proved to be correct as Story quickly revealed an inclination to accept most of Marshall's principles..."
Note also
"Story's opinion came to stand for the proposition that a general federal COMMON LAW existed that federal courts were free to apply in virtually all common-law matters of private law. The idea of federal common law promoted national uniformity but also constituted a revolutionary expansion of federal jurisdiction. The Supreme Court overruled this proposition in ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), declaring that federal courts must apply the law of the state, whether it is statutory or case law."
But not until 1938. Justice Scalia speaks of Erie here as a turning point in American jurisprudence,
"Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it's our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.
Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.
And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions... It's quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that's why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist..."
A great speech to understand his judicial philosophy, and why he's a "textualist."
http://www.joink.com/homes/users/ninoville/aei2-21-06.asp
And as for the partisans among us, in a debate with Nadine Stoessel, Scalia warned that if judges ignore the law and rule simply according to "what they think is right,"
"Someday, Nadine, you’re going to get a very conservative Supreme Court… And you’re going to regret what you’ve done."
J, your words I get, but how do they justify your position?
"Article 1 starts by enumerating limits on legislature (ie the states)."
It is my understanding that the constitutions enumerated limites are only relevant to the federal governmernt.
Thanks for this discussion...I am mulling and will continue to research these things.
Sovereignty belongs to who? the individual in human rights, the state in representation of its contiuency, and the nation in its unity of "culture". or "God" in "somewhere up there" in "common law", natural law, or moral order. But, how do we understand that, if we believe this in today's understanding of diversity and your whole conversation about "texturality" and "natural law"? America's unity has been the "rule of law", and that is what you are debating, fascinating...
I guese those who believe in "god' play out differently, but the atheists would adhere to a constructed view of the nation state.
Keep rolling....
bpa - “It is my understanding that the constitutions enumerated limites are only relevant to the federal governmernt.”
That’s my understanding too.
But what good would 13 (or 50) states be to a union if each were pulling in a different direction from the basic principles of the founding contained in the US Constitution? The states have always had the right (and still do) to determine their individual destiny but in partnership with the whole (in their own way and at their own speed). I find it as no surprise that the internal momentum of each state is toward reconciliation with the US Constitution, if for no other reasons than economy and aversion to chaos.
Can you imagine the AAA Trip Tick that would be generated if some states still allowed slavery and some didn’t? Why it might be near impossible to travel with slaves/property across the union [/sarcasm]. Ask gun owners that come from an open carry state.
What about establishment? If I was transferred from a job in Massachusetts to one in Texas and each had a different established religion and/or sect, then what of my guarantee to rights of conscience and my ability to remain a first class citizen of the US?
Very unwieldy.
On another note, the mild banter as seen in these parts is pretty weak by 1800 election standards.
Article 1 sets limits on congress, ie the Legislature. The laws it makes apply to all--and Article 1 prevents states from making laws contrary to the Constitution (what is that jurisdiction, or something in legalese), even if they wanted to (say voting in the baptist church, or something).
So in effect the constitution binds the states, via the three branches--though the judiciary can review legislation--another example of Fed power (not states rights or legislation).
The southern states seceded in 1861 mainly because they knew that Lincoln and a northern congress were set to outlaw slavery (which AL did). So in effect, the power of the Federals did succeed over the states rights, whether one approves or not.
(and the Framers would have considered a Scalia, like a son of Beelzebub)
But what good would 13 (or 50) states be to a union if each were pulling in a different direction from the basic principles of the founding contained in the US Constitution?
The "nullification" problem is at heart here, I think. Some states claimed the right to "nullify" acts of the central gov't, and it came to a head over tariffs and South Carolina. Andrew Jackson prepared for war, but a compromise was made.
Still, it was sort of a dry run for the Civil War.
http://en.wikipedia.org/wiki/Nullification_Crisis
See also
http://en.wikipedia.org/wiki/Kentucky_and_Virginia_Resolutions
which concerned the Alien and Sedition Acts, and which tested the same waters. Jefferson and Madison stopped short of advocating "nullification," however.
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What about establishment? If I was transferred from a job in Massachusetts to one in Texas and each had a different established religion and/or sect, then what of my guarantee to rights of conscience and my ability to remain a first class citizen of the US?
Very unwieldy.
This discussion has taken a detour around the subject of religion, which is more explicitly addressed in the Bill of Rights [Congress shall make no law...]
The Constitution gave enumerated powers to the central government; dominion over religion was not one of them.
Neither did Madison's proposed language of rights of individual conscience didn't make it into the First Amendment. That individual right---equal protection of the laws, which would invalidate any state's religious tests for public office, would stem from the 14th.
Sovereignty belongs to who? the individual in human rights, the state in representation of its contiuency, and the nation in its unity of "culture". or "God" in "somewhere up there" in "common law", natural law, or moral order. But, how do we understand that, if we believe this in today's understanding of diversity and your whole conversation about "texturality" and "natural law"? America's unity has been the "rule of law", and that is what you are debating, fascinating...
I guess those who believe in "god' play out differently, but the atheists would adhere to a constructed view of the nation state.
This touches on some of the further issues, not in the least the question of whether a society---or a nation---is more than just the sum of its laws.
As to sovereignty, I think you put it well, Ms. VDM, and Barry Shain's thesis argues against a "radical individualism" in the Founding, although for many, such a radical individualism is precisely what freedom and justice require. Or as Scalia puts it, notions of common law have been replaced that with the law of human rights.
The functional judicial problem with that being judges differ on what those rights are...
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I hate to use the word, drivel, to define some of the comments being made here.
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But, we live in a republic and whether our elections are rigged or fraudulently counted or not, it is the will of the majority that eventually wins out.
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The Civil War was fought at terrible cost of life and limb as well as of property; but, it settled the question once and for all time about whether or not a state has the right to pull out. Any person in their sane mind now knows that there is no way any state has the right to secede from the union. Everything else to the contrary--period.
We can dispense with such talk and suffer no pain in our search for understanding.
How is it that we can act in ways that even legal scholars see as unconstitutional?
Our society is like the God of the Old Testament. It is what it is coming to be.
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Let's make the most of it.
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Perhaps peruse "the Bill of Rights" , TvD. And the Framers did engage in rights discussion--as did their mentor Locke (not to say they weren't hypocrites as well--). Habeas corpus was written in the Con. as well. Even the fave Amendments of the conservatives (the 2nd Amendment) specifically mention....rights.
In fact TvD sounds a bit like the rightist-Federalists ala Hamilton, a fan of Anglo "common-law" as well (aka Kings Law): the Federalists wanted to diminish rights claims. Then, Scalia himself often sounds like he wants to turn the US into a italian duchy, circa 14th century or something--his machiavellian quotient exceeding even that of Hamilton.
Actually, I'm helping you with your argument, and you're so quarrelsome you don't even realize it.
No, you don't appear to be aware of the fundamental battle that occured before the ratifying of Con. between the Federalists and anti-Feds (the early states rights groups). In fact one of the bones of contention was the extent of judicial power. The southerners--including virginians-- were not all supportive of the judiciary, even early on. And I would say the "orthodox" christians were mostly states' rights types (not all).
Those who believe SCOTUS has the final word are not with the states' rights crowd, but closer to a Federalist POV--at the same time, there were sort of rightist Feds (Adams and Hamilton, and leftist Feds (Jay). Madison was sort of a centrist, really. Facile generalizations are verboten in history, except maybe at Limbaugh U.
Or one could take Dr Johnson's view of 'Mericans: "Sir, they are a race of convicts, and ought to be thankful for anything we allow them short of hanging."
Tom, I think you understand all the points you addressed very well ;-)
Because America was founded against "a Divine Right of Kings", and the consent of the governed, then would we not suppose that a country "for the people and by the people" would be one that would adhere to both national security and human rights? That seems reasonable to me...and the State Department does represent these seeming conflicted interests...
God is not deemed to be "THE" Sovereign, because he remains undefined. America adheres to a seaparation of Church and State. Just because we have come to understand that men cannot live by "God's Word" alone, we "debate" what our country's values, and its laws should reflect.
The Restoration movement, or Wall Builders, from what I understand, is a fundamentalist type understanding of government and what it should represent. Things are not so simple.
For instance, I have been wondering how we get around allowing "Shairia Law" in our country, that allows "family law" (honor killing) and adhere to family values? Just yesterday or the day before, there has been some movement in the State Department toward Shairia Law...How do we not discriminate, when these laws undermine what we value as human rights (women and children)?
Fortunately, the young girl that converted to Christianity was allowed to stay with her surrogate parents, because of her fear of 'honor killing'. I hear that the parent have appealed to the judge. What will happen? We have seen honor killings on our soil. This is not our culture and we are doomed to be oppressed if we allow such oppressive forms of religion...
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Okay, Angie, you owe it to the readers to produce the references for your statements about the state department and sharia law.
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Angie,
I suspect you are referring to the well publicized case regarding the Ohio teen whose on-line communication with a religious group here in Florida resulted in her running away from home and converting to Christianity?
BTW, I find the implication that our Nation permits honor killings to be baseless.
What is central to this case is whether or not the child is at risk due to her new found religious convictions.
What is also in question is the manner in which individuals in Florida got involved.
For anyone not up to speed, here are some references; Orlando Sentinal, Columbus Dispatch, 10TVNews (Columbus, Ohio), and WorldNetDaily (ugh).
In any event, it will be about 10 days before the evidnece of the case may be made public.
It is my opinion that the young women is old enough to make here own decisions. If she wishes to convert and spend live in Florida under the care of her adoptive Christian organization, I support her. She may not be mature enough to make the best decisions, but I think she is more capable of deciding the current situation that anyone else.
Pinky,
The Wall Street Journal's opinon by Benjamin Solomon said that Obama's legal advisor to the State Department, Harold Koh, is open to Shairia as a cultural norm.
The NY Post states Koh's opinion:
"Judges should interpret the Constitution according to other nation's legal norms. Shairia Law could apply to disputes in U.S. courts".
What this boils down to is allowing something that usurps our understanding of human rights. Which cultural norm is more important? Human rights, or religious freedom.
Beware evangelicals, Restorationsists, or those who seek "religious freedom" at the expense of our liberties!!!
bpabbott,
In stating that we allow honor killings, that was a "emotional slip". Sorry. I was thinking of the situation in NY which was, I believe, prosecuted.
"an emotional slip"?
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Angie, I think this case inspire passions and fears in nearly everyone. It is a web of concerns; child safety, parental rights, religious liberty, etc.
I think it important that we handle it properly.
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Angie made this statement, "God is not deemed to be 'THE' Sovereign, because he remains undefined. America adheres to a seaparation of Church and State. Just because we have come to understand that men cannot live by 'God's Word' alone, we 'debate' what our country's values, and its laws should reflect."
I think the facts bear out that Revolutionary-era Americans had no such ideas; but, that they believed the political process should have only very limited power as the people depended on God's love and His grace for the quality of life. They were much more desirous that their local communities have an intrusive authority over them and their neighbors and far less with the states and even less so with the central government. Communication was pretty much limited to the local community in which people lived their real life. Remember, only two or three cities had populations in excess of 25,000--and most were congregation sized.
They lived with a strong definition of God. He was Jehovah God of the Bible and that was where most people got their ideas of higher aspiration and of what a society should or should not be
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And, men lived "not by bread alone; but, by every word that came out of the mouth of God."
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Men in civil societies live by science, reason, and multi media. Are you saying that we should live without these "luxuries" that has made us aware and "more free" from oppressive regimes, because of wide-spread knowledge.
The free press is a necessity to freedom at large. There are countries that limit their people's acess to the Internet.
So, why are you saying that we should "hide our heads in the sand" and beocme narrowly focused, adhereing only to a text and medival mentality?
An "emotional slip" because of my exposure to the 9/11 incidence (as well as many other countries attacks).These attacks are in no way "balanced, or rational".
I went to the "journalism' musuem in D.C. several times where they have the trade tower antennae, headlines from all over the world, and actual footage and the timeline.
I have been "under" that kind of religious teaching, where love of God trumps everything that makes a human a human. Those in these power positions deem it necessary to eradicate any other 'love", in the name of idolatry. It is emotionally abusive, oppressive and horrendously damaging.
And now we hear that there are some who want to "blame America' (scapegoating)these attacks. That is outrageous. So, yes, "an emotional slip", because of fear that these issues, which bpabbott stated will become only defined by a facist type ideology. That does scare me. But, I am trying to not allow it to cloud my head too much. I do try to think through the issues and how it will affect our society.
Men in civil societies live by science, reason, and multi media. Are you saying that we should live without these "luxuries" that has made us aware and "more free" from oppressive regimes, because of wide-spread knowledge.
The free press is a necessity to freedom at large. There are countries that limit their people's acess to the Internet.
So, why are you saying that we should "hide our heads in the sand" and beocme narrowly focused, adhereing only to a text and medival mentality?
An "emotional slip" because of my exposure to the 9/11 incidence (as well as many other countries attacks).These attacks are in no way "balanced, or rational".
I went to the "journalism' musuem in D.C. several times where they have the trade tower antennae, headlines from all over the world, and actual footage and the timeline.
I have been "under" that kind of religious teaching, where love of God trumps everything that makes a human a human. Those in these power positions deem it necessary to eradicate any other 'love", in the name of idolatry. It is emotionally abusive, oppressive and horrendously damaging.
And now we hear that there are some who want to "blame America' (scapegoating)these attacks. That is outrageous. So, yes, "an emotional slip", because of fear that these issues, which bpabbott stated will become only defined by a facist type ideology. That does scare me. But, I am trying to not allow it to cloud my head too much. I do try to think through the issues and how it will affect our society.
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Let me put it this way, My Dear.
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I like to think you don't know anyone more progressive in their thinking than yours truly.
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Ask around.
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I was not talking about how things are; but, how things were during the Revolutionary and the Founding-Era.
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Journalism? In America? Today?
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Tell me about it.
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Off to the salt mines...\
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Men in civil societies live by science, reason, and multi media.
Oh, Christ, I hope not.
I have to admit, the "multi-media" part tripped me up.
Regarding science, civil societies do rely heavily upon it. However, as science is a tool used to develop empirical understanding, I hesitate to say societies "live by it" ... same goes for "reason", I think.
Okay, I don't know what "page" everyone is one. But, people in the West live by the pragmatic questions of science. What works? What is cost effective? What helps? What hinders? What protects the environment? We are a "fix it" society. So, we do live by science, as this is what is driving policy issues...economics, medicine, psychology, even, antrhopology and cultural studies, etc....
As to reason, this is what should be used to form a better society, and this is on what science depends.
The multi-media influence us all, whether we recognize it or not. We get our information and form our opoinions from that information. And some of us are so influenced by the media that we don't stop to think, but only "see" what is appealing to the senses, and that impacts our judgments about what we hear....no thinking allowed...
We are protected by the laws of our land. This is what our individual rights are about. Laws are not prescriptive. They do not tell us what to do. And this is as it should be, a limited government.
Please inform me of what I am "missing" or not understanding. That is, if you think I can understand or benefit from it...
Ms. VDM, the utilitarianism you describe is a dystopia. It cannot tell us what is right or wrong, what is good or what is best, only what is useful.
Read this and tell me what you think. It's the product of reason and utility.
http://www.nytimes.com/2003/02/16/magazine/unspeakable-conversations.html
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The "multi media" as it is being called is the Press that our Founding Fathers ensured would be free.
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Why don't you just give us a thumb nail of the lengthy article you've offered, Tom.
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It's a mite long, you know.
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TVD
I never said that I believe in utilitarianism. but, I do think that this is what prevades much of scientific reasonings. Utilitarisnism is what scares me about universal healthcare, besides, our loss of privacy.
In American Creation's post "A Right to Die", I suggested that people should be allowed the right to choose, FOR THEMSELVES, to end their life. Obviously, she did not think that she nor any other disabled person should be deemed as "damaged goods". I agree. But, her situation was one of a "universalized" standard about the disabled. What if she had felt differently? Would she allow another disabled person to choose differently for their life?
Singer represents what will become of universal healthcare. People will have no choice, as the choice will be made for them. And this goes for the young or those too young yet, to choose. Their lives should be protected until they have a right to choose.
The protection of life, versus parental right should never be based on expendency. This is where the "proof" of a more serious reason is the requirement of an abortion.
Some would deem that there is no reason to abort under any circumstance, but I disagree. I think that if the mother's life is endangered, then the decision should be left up to her.
A person's choice is of ultimate value in a free society, and that must be protected at all costs.
Legislation should not condemns or criminalizes personal choice, as this does protect those who will choose to abort, irregardless of whether it is legal or not. These decisions are waters left best to those that will bear their choice and its effects.
BTW, those who think that sex education is doing damage to our children are not in line with what is "out there". In protecting young people and society from STDs, should we preach abstinence and have teen pregnancies and further spread of STDs?
It is impractical and idealistic to think that all young people are goind to be abstinent. Public education demands for there to be concern for these issues, and in touch with the real world enough to know what the statistics say.
The Church should be where teens are encouraged about abstinence.
Pinky, Peter Singer is a world-famous thinker; Harriet McBryde Johnson was a nobody like you and me.
The article isn't a waste of your time, and of all the BS I've ever set down here, this is 1000 times more important than my poor power to add or detract.
When we make an abstraction of human life and its meaning, and all become dispasssionate brainiacs talking abstract philosophical shit, we lose what it is to be human.
We lose what we were talking about in the first place, and in doing so, we lose our own humanity.
Please humor me this once and just read it.
Singer represents what will become of universal healthcare. People will have no choice, as the choice will be made for them
Let's just stop there for now on this level of agreement, that we see the same future for our current course of politics. And thx very much for reading the article, Angie.
However, you see "rights" and "choice" as synonymous, and write that often. So do many people these days, and acknowledged that in my reply
As to sovereignty, I think you put it well, Ms. VDM, and Barry Shain's thesis argues against a "radical individualism" in the Founding, although for many, such a radical individualism is precisely what freedom and justice require. Or as Scalia puts it, notions of common law have been replaced that with the law of human rights.
If you've been following the very good discussion we've been having about John Locke and Gary Kowalski's ["Revolutionary Spirits"]
http://americancreation.blogspot.com/2009/09/right-to-die.html
I must drag in one of Ben Abbott's tender admissions. Although he writes about his death,
but I also hope to remain committed to a "noble" exit! ;-)
he also writes
Personally, I hope to be able to determine my time to pass, and am more hopeful that those around me will be convincing of why I should continue in the event my will falters ...
And so we run up against the Golden Rule, an approximation of Christianity:
Do unto others as you would have them do onto you.
Well, what I'd want done onto me is not abandoning me to my "rights" and "choice," and as Ben puts it,
that those around me will be convincing of why I should continue in the event my will falters...
Y'know, Ben, you made my eyes fog up a little with that one. It was byooful, man.
17 Pages printed out.
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Seems likje it deserves its own thread.
Hehe.
http://americancreation.blogspot.com/2009/07/christian-nation-well-kinda-mebbe.html
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O.K., I'm humoring you.
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What is the purpose you want your readers to appreciate?
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The role of reason, its possibilities, its limits.
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I asked Tom the purpose of his bringing up a link to some very touching experience of a woman who was born with a very debilitating physical situation in her encounter with a person who promotes abortion in cases where there is great risk for the quality of life of a new human to be born and Tom responded with, "The role of reason, its possibilities, its limits."
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Do you want to discuss the human condition in which we all exist, Tom? Or is there some other focus we should make to fulfill your purpose?
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Men in civil societies live by science, reason, and multi media.
Pinky, there are a lot of people these days, not just Ms. VDM, who assert this. [We'll skip the multi media part, although that has its own frightening implications.]
If we're to hand over this nation to such an ideology, I simply want us all to know what we're getting into. For one thing, it sure wasn't the Founding, it's a whole new ballgame.
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So, do such people represent some sort of a threat to our way of life?
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I am coming to be fascinated about the nature and character of our ancestors during the eighteenth century and want to understand what it was that caused them to change during the decade of the 1780s.
I am beginning to get a feel for what kind of people they were. Fascinating.
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I am beginning to get a feel for what kind of people they were. Fascinating.
Y'know, Pinky---Phil---that's been my goal too. I think it's the real goal of the historian, too. If I imposed on you to read about Harriet, it was to "feel" it.
Because we're more than our posturings, our abstract thoughts. Harriet McBryde Johnson was a human being, not an idea, not a statistic. Once we reduce each other to positions and equations---and historians are way guilty of this---we lose our reason for studying history in the first place, to discover what we have in common [or are different] than those who came before us, and our opportunity to learn about ourselves.
Cheers, and thanks.
I read the first half today and I plan to finish it tomorrow.
The people that live in an era exist and interact in a culture specific to the particular time. They, in effect, seem to create the era as a result of their nature and character.
There are a few Puritan types around still. Generally, they give us a pain.
Think of an entire society of Puritans.
Woof!
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Well, if we can touch on our mutual friend Leo Strauss [via Plato], the permanent problems of humankind remain permanent.
"Perennial," I think Strauss put it. They come up every year, every generation or era. They just take different form, like Peter Singer and Harriet McBryde Johnson in our era, but it's still about the meaning of life.
Sort of a pendulum swinging between godless assholes and Puritan assholiness.
It brings to mind the classic post-Puritan Calvinist Jonathan Edwards' famous sermon "Sinners in the Hands of an Angry God."
As I understand it, Edwards actually planned the end of the sermon to be about how much God loves us and all, but the people wanted chastising so much that they went so nuts that Edwards never got to finish.
The pendulum swings, and each age requires its own balancing.
In our age, 2009, I think we've heard the arguments of the last age, science and reason and all that, and are now asking, is that all there is?
If so, what a drag.
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So, Tom, you're a lot like everyone else in this mixed up world where consumerism is king.
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Or, is that kink?
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My surmising of what our Revolutionary ancestors were all about causes me to get into a studious mode about where we presently find ourselves.
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Moses, in the Old Testament is confronted by God. Or was it that God was confronted by Moses?
Anyway, there was an exchange and God said something like this to Moses in response to a question about who God was:
"I am the One that is coming to be who it is that I am coming to be."
We Americans are who it is that we are coming to be--nothing more and nothing less.
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If we are somewhere between those two extremes you're pointing out, so be it.
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A couple of weeks ago I visited the Museum of Natural History in Chicago. When I entered the main lobby, there--at the other end--Pirates (manikins) were scaling the walls climbing ropes. Of course, it was an advertisement for one of the special feature events.
I bought my ticket and entered the exhibit on pirates.
I learned about England's unbridled age of capitalism and how slavery came to be such an important aspect in the grand schemata; how pirates commandeered slave ships and recruited slaves to help them plunder from capitalists.
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In the same sense, I'm learning about our ancestors and how it was that they created the era that brought about our American Revolution. And, I am seeing the thread of the intellectual elites and how they steered our ship of state safely on a stormy sea to a course on which we sail today.
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Run-a-way capitalism has taken a great deal away from We the People; but, there is an old belief that the Voice of God is eventually heard coming up from those of us who are the people.
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We're working through it and our intellectual elite are commissioned with the responsibility of getting us out of our present nihilistic mess.
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Are YOU doing YOUR part?
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Are YOU doing YOUR part?
Not enough, I'm sure. Perhaps soon. I'm developing my arguments with the kind assistance of folks like you.
I certainly agree about the nihilism.
Speaking of American History.
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America is leaving an era in which the words to this song gave meaning to life for many people.
Time Waits For No One
Time waits for no one
It passes you by
It rolls on forever
Like the clouds in the sky
Time waits for no one
Goes on endlessly
It's just like a river
Flowing out to the sea
You'll find that love is like this
Each precious moment we miss
Will never ever return again
So don't let us throw one
Sweet moment away
Time waits for no one
Let's make love while we may
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[Words and Music by Cliff Friend and Charlie Tobias]
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We are the ones that create the era in which we live out our life.
If we are slipping into an era of nihilism, it is our own fault. We have allowed run-a-way capitalism to turn us into consumers bereft of a life of meaning without the latest possession.
Now, we are experiencing a time when it is more and more difficult for us to possess that which we think we must have. Life is losing its meaning. We are lost.
But, it is an opportunity to get back to basics.
Our being is like a river fed by tributaries we call experience. Some of us get hung up at the eddies where our experiece meets who it is we are coming to be. We have to learn how to let loose of those tributaries and to get back into the main flow of our life so we can get on with the purpose of our being.
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Life is soooooo fascinating.
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Our Ship of State is on dark waters. Our captain is struggling. He needs our help.
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If we are slipping into an era of nihilism, it is our own fault. We have allowed run-a-way capitalism to turn us into consumers bereft of a life of meaning without the latest possession.
I don't mean to anger or embarrass you, but you're echoing Pope John Paul II.
http://www.beliefnet.com/Faiths/Christianity/Catholic/2000/01/Whats-Wrong-With-The-World.aspx
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On the contrary.
I am complimented.
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I wrote about America's Godly heritage on my site. Good stuff...
what is the bible?
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