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The Decline of Constitutional Morality: A Conversation with Bruce Frohnen

with Bruce P. Frohnen

Is America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.

Reader Discussion

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on September 14, 2016 at 12:03:26 pm

“Progressivism…in the idea that the job of government is fundamentally to do the people’s work...and an awfully lot of people simply expect government to do their will.” - Bruce Frohnen

It seems to be only the natural and inevitable, if not foreseeable to many, progression; that the so-called, "Welfare State", should eventually mutate into this particularly constitutionally resistant strain of government, a "Selfare State", if you will, with which the U.S. currently finds itself infected.

The tools and method for reining in a run-away administrative branch, of course, were foreseen and provided for by the Founders; the will to take them up again is what currently seems most lacking.

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Paul Binotto
on September 17, 2016 at 15:49:21 pm

What happened to the 14th Amendment?

Or the other essentially Republican Party amendments.

The local morality idea made slavery of non-whites a matter of law. But even after the big government central power dictating from afar eliminated legal slavery, local morality made employing mostly non-whites but also whites who did not conform to some religious or heritage standard criminals who could be sold as prison labor based on the crime of not being employed by whites and thus being vagrants. And if non-whites sought to build their own community in defiance of the whites, they were killed, runoff, burned out, as in Forsyth County Georgia.

The scientific facts are clear that sexuality is not binary biology, nor learned. While genetics plays a huge role in kicking off a cascade of hormones and cellular changes, this cascade results in a bi-modal distribution of traits tied to sexual or gender that smear over the range with many people ending up in a central region with some degree of ambiguity. If you believe in individual liberty, only the individual can determine where on the spectrum you fall.

But in the claim of constitutional liberty, we have opponents fighting "Obama" by passing a law that orders individuals to act, if not think, as dictated by government based on the government record of the individual as male or female. Justification seems to be that the Bible morality overrides science based on actual observation of nature as it exists.

Granted, before the 14th, a State could establish a religion which all must follow, though every State removed their formal established religions. Still, locally, religions were excluded and persecuted. For example, the Mormons, which even as Mitt Romney was nominated for president was deemed by some as illegitimate and disqualifying. And note that Congress eventually made membership in the Mormon church a crime, and jailing several Mormons was upheld by the Supreme Court, along with confiscating church property. That's why the Romneys have Mexican roots - they fled to Mexico to avoid persecution by Congress based on law signed by Abraham Lincoln, and Republican Congresses.

The root of the jailings was the Mormon religious definition of marriage. The root of the jailing of the Lovings was the local religious definition of marriage, a definition that would define Justice Thomas as a criminal.

What made Federal intervention into "local morality" necessary was and is the 14th Amendment that makes the first amendment universally local, not just for the Federal government.

As to regulations, it would be so much simpler if Congress made the CEO of a corporation guilty of murder if any employee dies on the job. Then there would be no need for OSHA to define all the ways employees must be protected from death and injury on the job so CEOs are able to be immune from liability when his workers are killed doing work on his orders.

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mulp
on September 19, 2016 at 15:13:55 pm

" If you believe in individual liberty, only the individual can determine where on the spectrum you fall." - well, REALLY now?

And if one should think that he is an eagle and can fly off buildings, does that make him an eagle?
If so, proceed to leap, my friend - it may be an exhilarating, BUT short, flight of FANCY!

One wonders if congress would be so good as to pass a law governing stupidity - something akin to the CEO Law suggested above - if anyone listening to idiotic / ideological pronouncements engages in stupid acts, then the purveyor of the original stupidity ought to be charged with abuse.

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gabe

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