We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Article I.
DEMOCRACY - A word that has lost its meaning.
What does the word democracy mean? It is used freely to describe the form of government in the United States. According to Merriam-Webster's online dictionary, Democracy is "government by the people; especially : rule of the majority b: a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections"
A "Pure Democracy",also according to Webster, is "democracy in which the power is exercised directly by the people rather than through representatives"
Our Founders were clear that the form of Government that they established was not a democracy but was a Republic.
Republic Defined-
In the Federalist Papers (No. 10 ) James Madison writes "...a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole;"
He further writes "A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking"
To show the importance of differentiating between the two Madison writes, "The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended."
The Preamble to The Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
"No bill of Attainder or ex post facto law shall be passed."
Do you know what that means? The key is the word "attainder." Let's go to Websters: It's a 15th century word meaning "extinction of the civil rights and capacities of a person upon sentence of death or outlawry usually after a conviction of treason." A definition, this one from the Catholic Encyclopedia, describes "bill of attainder" thusly: "A bill of attainder may be defined to be an Act of Parliament for putting a man to death or for otherwise punishing him without trial in the usual form. Thus by a legislative act a man is put in the same position as if he had been convicted after a regular trial."
Well, in this case the Congress isn't trying to put anyone to death ... they're just trying to steal some money. They are trying to deprive some individuals of property that is rightfully and lawfully theirs without accusing them of a crime and without the benefit of any trial ... except, that is, for this trial that has been taking place in the media for the last week. Well, there's that pesky little Constitution again. A man cannot be deprived of life, liberty or property without due process, and in our country due process means a trial before a jury of one's peers. Barney Frank et al are trying to take these people's money through legislative action without a trial. I would truly hope there isn't a federal judge in this country that wouldn't smack this idiocy down at the earliest opportunity.
This isn't about whether or not those people deserved those bonuses. Perhaps not. But the bonuses were paid pursuant to a legally enforceable contract. The property is theirs. Now we have politicians who are trying to take it away just because they're unhappy and embarrassed because they didn't take care of this little problem before the bailout money was paid.
On to the Senate. Let's hope someone over there has read the Constitution.
(CNSNews.com) - During his speech at a recent National Press Club luncheon, House Judiciary Chairman John Conyers (D-Mich.) said he is introducing a constitutional amendment that would establish health care as “a right” for all Americans. “We need a real serious bill and, by the way, the fundamental question, ‘Is health care a constitutional right?’” he said. “I mean, do you have a right to health care in the American system of government or not?”
“Well, we believe that people do and we’re introducing a constitutional amendment just to make it real clear so that you don’t have to infer or assume that that’s a given and all that.”
Yesterday the Obama campaign called on University of Chicago law professor Cass Sunstein to tamp down the furor over Obama's advocacy of "redistributive change" and overcoming of the Constitution's "negative rights" in his 2001 radio interview. Politico's Ben Smith reliably channelled Professor Sunstein's spinning on behalf of Obama.
Professor Sunstein was actually the right man to call on to explain Obama's remarks. They derive directly from Sunstein's advocacy of Roosevelt's so-called second Bill of Rights. Sunstein devoted a book to the subject in 2004 -- The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever. Roosevelt set forth his "second Bill of Rights" in his January 1944 State of the Union Address:
In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all--regardless of station, race, or creed.
Among these are:
Tom Palmer usefully explicated the political thought underlying Sunstein's argument in his review of the book. By contrast with the doctrine of rights conferred by God and nature set forth in the Declaration of Independence, Sunstein holds:
You owe your life -- and everything else -- to the sovereign. The rights of subjects are not natural rights, but merely grants from the sovereign. There is no right even to complain about the actions of the sovereign, except insofar as the sovereign allows the subject to complain. These are the principles of unlimited, arbitrary, and absolute power, the principles of such rulers as Louis XIV. Intellectuals have assiduously promoted them; think of Jean Bodin and Thomas Hobbes.
Thus Palmer deems Sunstein a "new intellectual champion of absolutism" who advances "the radical notion that all rights -- including rights usually held to be 'against' the state, such as the right to freedom of speech and the right not to be arbitrarily imprisoned or tortured -- are grants from the state."
At the American Constitution Society's "Constitution 2020" jamboree at Yale Law School in 2005, according to my daughter's notes, Sunstein explained:
* With growth and change, political rights enshrined in Constitution are inadequate.
* Need economic bill of rights. Ingredients of Second Bill of Rights--only with these rights will we have security
* Long tradition of American political thought--states owe to every citizen a degree of subsistence. Second Bill of Rights made possible by attack on distinction between negative and positive rights. Effort to separate them is unfit for the American legal framework.
* Roosevelt . . . did not favor return to narrowly construed judgments of those who drafted the Constitution.
* By 2020, it's going to be about time for the Second Bill of Rights to be reclaimed. . . . Beauty of Roosevelt's Second Bill of Rights is its concreteness--right to education, etc.
The debate on the left, alluded to in Obama's remarks and addressed in Sunstein's book, has been whether Congress or the courts should promulgate the welfare state agenda. Three years ago Sunstein et al. modestly posited the fulfillment of their welfare state dreams in 2020. With left-wing Democratic majorities in both houses of Congress, and with Obama's ascendance, it looks like the future is now.. LINK
Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.
Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.
The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.
The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.
On the Supreme Court, six of the current nine justices will be 70 years old or older on January 20, 2009. There is a widespread expectation that the next president could make four appointments in just his first term, with maybe two more in a second term. Here too we are poised for heavy change.
These numbers ought to raise serious concern because of Mr. Obama's extreme left-wing views about the role of judges. He believes -- and he is quite open about this -- that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.
Speaking in July 2007 at a conference of Planned Parenthood, he said: "[W]e need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
On this view, plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.
In a Sept. 6, 2001, interview with Chicago Public Radio station WBEZ-FM, Mr. Obama noted that the Supreme Court under Chief Justice Earl Warren "never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society," and "to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical."
He also noted that the Court "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted." That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice.
This raises the question of whether Mr. Obama can in good faith take the presidential oath to "preserve, protect, and defend the Constitution" as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a "tax cut" to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.
Every new federal judge has been required by federal law to take an oath of office in which he swears that he will "administer justice without respect to persons, and do equal right to the poor and to the rich." Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.
The legal left wants Americans to imagine that the federal courts are very right-wing now, and that Mr. Obama will merely stem some great right-wing federal judicial tide. The reality is completely different. The federal courts hang in the balance, and it is the left which is poised to capture them.
A whole generation of Americans has come of age since the nation experienced the bad judicial appointments and foolish economic and regulatory policy of the Johnson and Carter administrations. If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.
Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation's courtrooms.
Mr. Calabresi is a co-founder of the Federalist Society and a professor of law at Northwestern University.
On Jan. 18, 2001, then-state senator Barack Obama appeared on a public radio chat show to discuss "The Courts and Civil Rights."
You can listen to the whole show HERE.
In that show -- WBEZ-FM's "Odyssey" -- Obama discussed the role of the courts in civil rights.
Today, aides say, Sen. John McCain, R-Ariz., will seize on some of those remarks, as hyped by Mr. Drudge.
Obama in that interview said, "If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order, and as long as I could pay for it, I’d be OK."
"But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn’t shifted."
Obama added, "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways, we still stuffer from that." LINK
