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The Natural Law of Free Speech

With Progressives increasingly condoning censorship of conservative views as “hate speech,” conservatives are responding with an increasingly absolutist freedom of speech. Some recent essays written in reaction to the Antifa/neo-Nazi violence in Charlottesville show the appeal that the absolutist view has to conservatives: If political communities were prohibited from drawing content-based restrictions on almost any expressive activity, dissent from the dominant political and cultural orthodoxies (read: conservative views) would be protected.

To be sure, the absolutist view is rooted in the past half-century of Supreme Court jurisprudence. Even so, conservatives ought to pause before embracing it.

Free speech absolutism is, to begin with, a position that lacks a basis in the Founders’ political philosophy, in the Free Speech Clause’s original public meaning, or in the reality that only a people capable of controlling their passions are capable of preserving self-government. It surrenders to moral nihilism the ability to see principled distinctions between the speech that can harm the civic virtue required for republican government and the speech critical to republican government.

The Right, rather than point out absolutism’s lack of support in our Founding or in the requirements of self-government, seems to find it an alluring posture given dominant cultural forces’ militant hostility to conservative views. Fear of drawing principled distinctions, however, is not a conservative tenet. Conservatives interested in conserving both the Constitution and the conception of liberty with which that document is imbued have good reason to reconsider an absolutist freedom of speech.

At the Founding, as I have argued in National Affairs and Public Discourse—and many judges and scholars, including Justice Samuel Alito and Judge Robert Bork, have expressed similar views—the freedom of speech was understood to facilitate truth-seeking on matters of public concern for the benefit of self-government. While some who argue as these conservatives do will want to dispute what constitutes speech on a matter of public concern, speech lacking in social value, including seditious libel, was often restricted if not prohibited in the United States.

The Founding generation’s willingness to curb socially valueless speech did not make our Framers Orwellian censors. Rather, that generation recognized what Alexis de Tocqueville did: “despotism may govern without faith but liberty cannot.” The Declaration of Independence reveals that the Founders understood an inextricable link among “the laws of Nature and Nature’s God,” “self-evident” or objective “truth,” and the proper organization of political society. Self-government was the “entitle[ment]” of the Americans, as the Declaration put it, because it was the only form of government capable of safeguarding their God-given rights.

Unsurprisingly, the Constitution reflects this linkage. It requires that all U.S. states possess a republican form of government. In Federalist 43, moreover, James Madison justified the Constitution’s replacement of the Articles of Confederation without unanimous assent not by majoritarianism, but by “the laws of Nature and Nature’s God” requiring the sacrifice of institutions that fail to safeguard natural rights.

Accordingly, restrictions on speech content in the American past—be they laws against blasphemy, pornography, false statements, or libel, even in a political context—were not an effort to impose a political viewpoint on a community, in the fashion of today’s campus activists who adamantly (and sometimes violently) seek to censor conservative views. Rather, as Phillip Hamburger detailed in Natural Rights, Natural Law, and American Constitutions (1993), those restrictions were a function of natural law defining the contours of our natural rights.

Strictly speaking, the parameters set by natural law do not even constitute restrictions. “Right reason,” as the Pennsylvanian Founder James Wilson described it, simply did not consider the freedom of speech to encompass such valueless speech. As the Supreme Court would say in Chaplinsky v. New Hampshire (1942), the First Amendment does not protect words that “by their very utterance inflict injury” or that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Of course, the fact that a political community could restrict speech that is without social value does not mean it should in every circumstance—or that particular restrictions cannot be otherwise challenged as violations of one’s due process rights or other constitutional protections.  Moreover, the fact that some speech conveying views antithetical to self-government, like that of the armed neo-Nazis in Charlottesville, may constitute a verbal assault or may incite violence does not mean that each and every expression of that viewpoint may be restricted. Justice Alito, dissenting in Snyder v. Phelps (2011), attempted to draw an analogous line between restricting the verbal attack that the Westboro Baptist Church committed against Albert Snyder in person during his son’s funeral, and the other mediums and means by which the members of that church could set forth their political views. The natural law, in other words, does not rob political communities of prudential judgment.

Notwithstanding the history I have mentioned, it is unfortunately a foreign concept to modern Americans that a community be allowed to draw distinctions between socially valuable and socially valueless speech. As Hamburger put it: “We have now forgotten the natural rights and natural law context of free speech and tend to perceive the ‘principle’ or ‘generality’ of speech to be merely the right to speak as one pleases.” The postmodern American, whose institutions and culture are steeped in moral relativism, may look askance at natural law’s definition of the contours of his rights. Understanding natural law requires moral confidence that there is: 1) objective truth that is 2) capable of being grasped, through 3) debate that is reasoned and civil.

All of these precepts are under attack today, but not from censorship.

When Americans lose faith in self-government’s ability to see the difference between the speech that facilitates truth-seeking and the speech that undermines republican government, the primary problem has nothing to do with free speech. As Jonah Goldberg put it when discussing why Progressives see no conflict between censoring conservative speakers and free speech: “The free speech argument is downstream of the real dilemma,” which is a lack of “civilizational confidence” among these Americans in the nation’s first principles of natural law and natural rights. Without such confidence, any distinctions that are made are not made based on the principles of self-government.

Thus the core problem with Progressive censorship: It is adrift from America’s foundational premise that a source of right and wrong extrinsic to temporal political power gives definition to rights, what is true, and what is good.

The Left’s interest in impugning conservatives by hanging the label of “hate speech” around their necks has nothing to do with the search for truth, and nothing to do with self-government.  For some Progressive intellectuals, the search for truth is, itself, a social construction designed to benefit those in power. The goal of some Progressive censors, therefore, is simply to possess that power. As Richard Rorty put it in Achieving Our Country: Leftist Thought in Twentieth Century America (1998), “objectivity is a matter of intersubjective consensus among human beings, not of accurate representation of something nonhuman.”

In other words, truth is not the result of a search for what reason and nature reveal as objectively correct. Truth is not to be looked for as the product of debate or dialogue on matters of public concern. Instead it is simply declared by those with societal control over how people are allowed to understand phenomena. Those with power must therefore police the conformity of citizens to a certain narrative of public matters.

On this view, “truth,” as Professor Crispin Sartwell says when setting forth Rorty’s scholarship,

is nothing but a story we will all come to accept together—a progressive story in which inequalities of race, sex[,] and sexuality are steadily being ameliorated.  The positions articulated by opponents of this narrative are false by definition, false from the outset, known to be false before they are even examined.  It is then well within the values of academia—devoted to the truth—to silence those views.

This could not be more distinct from ensuring, as Alexander Bickel called them in The Morality of Consent (1975), “rules of civil discourse” connected to “a limited number of broad first principles concerning the ends of government” designed to ensure open debate without diversion by man’s passions and impulses.

The hard Left, having little regard for such rules, believes that violence may be used to enforce conformity with its worldview, even as morally depraved speech lacking in social value is entitled to free speech protection. Viewing the public square as a place where man’s base instincts ought to reign, they have made “marketplace of ideas,” as Bickel said, a “bullring” where the Left’s ideology, not right reason or objective truth, enacts a showdown with dissenters who deserve the fate of the bull.

And indeed the conception of the freedom of speech as a “marketplace” of ideas—where nearly all speech must be exempt from restriction and the only remedy to vile or abhorrent speech is “more speech”—has done nothing to restore Americans’ moral confidence. I would say it has further eroded that confidence. Far from ensuring a victory for socially valuable speech by exposing it to vile, abhorrent speech, all the “marketplace” approach has done is saturate the public square with vile, abhorrent speech.

The absolutist position is akin to a compass without a magnet: Without any extrinsic source of objective value—right reason and objective truth—to allow political communities to assign worth to any speech, speech’s worth is determined only by individual perceptions, and these perceptions are informed by one’s passions. When those passions are aggregated, as has happened with Progressive dominance on college campuses, the “marketplace of ideas” lacks any strength to stop a mob silencing views that do not accord with those of the dominant consumers.

This would likely come as no surprise to the progenitor of the “marketplace of ideas” metaphor, Justice Oliver Wendell Holmes, Jr. Justice Holmes described the absolutist view of the “marketplace” in ways that furthered his broader commitments to a law without values, and to freeing the “dominant forces” within a political community of any constraints from the phony concepts of truth and rightness. As he put it in Gitlow v. New York (1925): if “the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Unsurprisingly, as Supreme Court jurisprudence embraced ever more tightly Justice Holmes’s “marketplace” absolutism, the law decreasingly set forth the foundational principles that allowed for the principled drawing of speech distinctions based in self-government. The Court’s own contrived balancing tests and hierarchies for speech-protection began to usurp the power of self-governing citizens to distinguish valuable from valueless speech. From here on out, speech could still be regulated or restricted, but only on the Court’s terms.

Then as the Court’s docket of free speech cases began to shift away from protecting political speakers, to protecting speakers purporting vile messages, the terms set forth by the Court began to be encased in sweeping rhetoric about individual autonomy. As Marc O. DeGirolami observed in Virtue, Freedom, and the First Amendment (2016), “one of the Supreme Court’s primary jurisprudential projects . . . over the last half century” has been “the ‘autonomization’ of the First Amendment.” This is the result of the predilections of the Court’s personnel, not original meaning.

By abandoning the original meaning of free speech, the Court’s interpretations result in a mismatch between absolutist rhetoric often deployed to protect vile speech and contrived restrictions on speech about matters of public concern. The Court’s record on protecting socially valuable speech—for example, speech incident to political campaigns and elections, pro-life speech, or religious speech—has been shaky, but its protection of the vile has confidently enveloped depictions of animal cruelty, graphically violent video games, lying about receiving military medals, shouting hateful epithets at a father burying his son, and most pornographic and profane expressions. It is far from clear why conservatives should see any benefit to continuing along this course, as it bears no relationship to originalism or the Founders’ political philosophy (saying nothing of its often disadvantaging conservatives’ own political causes).

Defenders of the absolutist view often claim that its consistent refusal to permit speech-content regulation constitutes a “neutral principle.” Perhaps this may even lead some conservatives to think that, as far as the Court’s jurisprudence is concerned, its primarily failing is in not being absolutist enough. But as Judge Bork explained in Neutral Principles and Some First Amendment Problems (1971), a principle is not “neutral” simply because it is consistently applied—it needs to be rooted in principle. Every theory of free speech is going to permit restriction of some expression; the question is, on what basis do the restrictions occur?

For its part, the Supreme Court has avoided the principle question by simply citing its precedent authorizing certain restrictions. But how can conservatives, if they take an absolutist view, defend in principle any restrictions on expressive autonomy? Conservatives have backed into an embrace of moral relativism in an attempt to safeguard their own station in the public square.

It would be foreign to the Founding generation to suggest that there is no principled way to hew the contours of the freedom of speech closer to what benefits self-government, rather than to what people’s passions compel them to emote at any given moment. Conservatives used to appreciate this. After Nazis marched on the largely Jewish neighborhood of Skokie, Illinois in 1977, William F. Buckley, Jr. possessed the moral confidence in self-government to repudiate the suggestion that “we indulge the little tyrants.” A Nazi march through a largely Jewish neighborhood, or a KKK march through the streets of Harlem, has the worth to self-government of “an obscene phone call.” Rather than hide such speech “under the umbrella of the First Amendment,” Buckley said “the moral is that little boys should not be given dangerous toys.”

Yet now, in reaction to neo-Nazi agitators in Charlottesville spoiling for a fight, some prominent conservatives maintain that any attempt at restricting such speech is just a prelude to “social justice warriors” running roughshod over conservative speakers. The only response, they claim, is that armed neo-Nazis looking for violence must be considered to have the same social worth to self-government and truth-seeking as someone coming to campus to defend the Electoral College.

There is no point to the search for truth if a political community must remain morally relative toward it. Devolution of the public square into vile ventilation seems inevitable when truth is only the province of individuals and not the community. A morally confident society—one possessing faith in its first principles—can see a principled distinction between restricting the expression of armed neo-Nazis looking for violence, on the one hand, and truth-seeking, on the other. In contrast, a society that cannot regulate damaging attacks on the public square calls into question the viability of all liberal principles.

“Where nothing is unspeakable,” Professor Bickel said, “nothing is undoable.” Conservatives should know human nature better than to embrace a valueless freedom of speech.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 18, 2017 at 08:47:37 am

Those who would wield the censor's pen should not be offended when it is used against them.

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Miss Creant
on September 18, 2017 at 09:49:02 am

The author makes some very good points, but in my view, to characterize that the situation that exists amongst Progressive thinkers is somehow simply a loss or lack of confidence in Natural Law and moral reasoning and principles does not seem to reflect the actuality expressed in their rhetoric; which in my view, can be better characterized as an abject and obstinate denial that these first principles exist.

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Paul Binotto
on September 18, 2017 at 10:02:30 am

[…] William J. Haun, The Natural Law of Free Speech […]

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Image of For Consideration: Immoral Speech Isn't Free | Palamas Institute
For Consideration: Immoral Speech Isn't Free | Palamas Institute
on September 18, 2017 at 12:27:09 pm

You are, of course, referring to the Antifa miscreants, correct?

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gabe
on September 18, 2017 at 13:16:45 pm

Anyone. Everyone. From the frustrated hall monitors in Berkeley to the moderators of this blog. And especially, the government.

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Miss Creant
on September 18, 2017 at 14:05:36 pm

Paul: "a loss or lack of confidence in Natural Law"

Which version? Aquinas, or Locke? And why should we have confidence in it, in the first place?

Paul: "moral reasoning"

Whose morals? Yours? Can you at least see why that is a deal-killer?

The general rule is the universal one: Censorship is a tacit admission that you are not confident in the soundness of your reasoning.

Censorship is the opening argument of the tyrant. Goebbels claimed that it is "the absolute right of the state to supervise the formation of public opinion," Foreign News: Consecrated Press, Time, Oct. 16, 1933, and Lenin thought that to give the weapon of freedom of the press to one’s opponent is to "ease the enemy’s cause." Vladimir I. Lenin, Pravda (1912). “The jaws of power are always open to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.” John Adams, A Dissertation on the Canon and Feudal Law (1765). From Tienanmen Square to America's street corners, the fangs of power are perpetually bared. Winston Churchill’s barbed observations are especially germane:

"You see these dictators on their pedestals, surrounded by the bayonets of their soldiers and the truncheons of their police. On all sides they are guarded by masses of armed men, cannons, aeroplanes, fortifications, and the like -- they boast and vaunt themselves before the world, but in their hearts there is unspoken fear: They are afraid of words and thoughts! Words spoken abroad, thoughts stirring at home -- all the more powerful because forbidden. These terrify them. A little mouse of thought appears in the room, and even the mightiest potentates are thrown into panic."

Winston S. Churchill (BBC Radio broadcast to London and America, Oct. 16, 1938), reprinted at Randolph S. Churchill, Into Battle 58-59 (Hesperides Press 2006).

Let the Nazis march through Skokie! Let racists carry their torches! ln the harsh glare of sunlight, their idiocy is laid bare. lt is easy--and intellectually lazy--to turn your opponents' mic off. But when you do, you create a precedent that may be used against you.

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Miss Creant
on September 18, 2017 at 14:22:32 pm

You quote my comments out of context and in so doing misrepresent them to your advantage, as prelude to your own tirade; under those circumstances I owe you no explanation.

One think is for certain, you enjoy the sound of your own reasoning....

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Paul Binotto
on September 18, 2017 at 15:49:17 pm

As far as I know, the moderator of this blog is pretty damn reasonable and has not censored any opinion expressed contrary to the stated aims of this blog and Liberty fund in general.

The exception may be excessive profanity and / or outright disrespect for other readers / commenters; but that may be no different than "censoring" one's own household while at the dinner table. As there, a nice / lively conversation ought to be provided.

take care

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gabe
on September 18, 2017 at 16:46:05 pm

Of course, one would prefer that that "reasoning" be *sound*

We do seem to live in a time when the mere expression of an (in?) formed opinion is deemed sufficient to carry an argument.

Oh well, "Sticks and stones .... [but reason (small *r*) will never harm thee].

Have fun - football season is upon us!!!!!! Oops, I forgot - THAT, too, is now deemed a proper platform for political expression.

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gabe
on September 18, 2017 at 17:16:14 pm

You are accusing "Progressive thinkers" of being "obstinate," are you not?

Disagreement with your unexamined premises does not a case for obstinacy make.

Unless we can examine your assumptions, we can't assay your claims. And one size doesn't fit all. Pope Francis is a pretty progressive thinker, and he would almost certainly embrace Aquinas.

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Miss Creant
on September 18, 2017 at 17:39:25 pm

Pope Francis, who said anything about Pope Francis? I smell a Dog in the guise of a Creant. Of course, "that which we would call a dog by any other name would smell..." Much the same can be said of Trolls...

If you would read closely you will see I accuse no one but the author of mischaracterizing denial as lack of confidence. Beyond this, you read into it what you may, it is no concern of mine.

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Paul Binotto
on September 18, 2017 at 17:48:57 pm

Too bad Haun didn't take the opportunity to address the wisdom of the incorporation doctrine.

The stinking Supreme Court's jihad against religion and crusade for pornography that began in the mid-20th C is on a par with its miserable decisions in Scott v. Sanford, Plessy v. Ferguson, Wickard v. Filburn, Terry v. Ohio and Roe v. Wade. The Supreme Court needs to be radically reformed but it seems that L&L will be quite happy with a little touching up around the margins.

The Supreme Court's loadstar in these matters seems to be: If the Federal government can't do it then no state can do it either. This is a completely bizarro reading the plain language of the Constitution.

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EK
on September 18, 2017 at 20:28:22 pm

Regarding the founders' view of the "limits and extent of natural liberty," it is useful to quote from one of the preeminent legal minds of the day -- James Wilson, a signer of the Declaration of Independence, one of the principal architects of the Constitution, and an original Supreme Court justice as well as one of the first law professors in the nascent USA.

Wilson told his law students: "Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections.…[Thus] he has a right to exert those powers for the accomplishment of those purposes… as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty… [which] is suggested to us not only by the selfish parts of our constitution, but by our generous affections; and especially by our moral sense, which intimates to us, that in our voluntary actions consist our dignity and perfection. The laws of nature are the measure and the rule; they ascertain the limits and the extent of natural liberty. --Collected Works of James Wilson, vol. 1 [2007],, p. 638, online at http://oll.libertyfund.org/titles/wilson-collected-works-of-james-wilson-vol-1

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John Schmeeckle
on September 18, 2017 at 20:48:41 pm

Hate to break it to you, but according to the Globe, that was the intention of Congress--to overturn Barron v. Baltimore.

So, why DO you hate the Bill of Rights?

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Miss Creant
on September 19, 2017 at 09:46:01 am

gabe!

It's nice that you feel gratitude for the providers of this webpage, and that you want to show support for them. That said, unless you are the moderator, you have no idea what is censored--by the very fact that the censored content has been censored. That's the nature of censorship. And It's silly to suggest otherwise.

Let's not argue from the basis of our ignorance.

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nobody.really
on September 19, 2017 at 10:33:39 am

"...you have no idea what is censored–by the very fact that the censored content has been censored. "
Now we would appear to be entering the realm of physics - what a black hole that is as there is no possible escape from the posited unknown and "unknowable"

"Let’s not argue from the basis of our ignorance."

Then again, maybe I do know? - how about you?

surely, you will admit that LLB is considerably more tolerant than, let us say, FIRST THINGS?

Take care

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gabe
on September 19, 2017 at 10:46:28 am

MissCreant:

I missed the reference to The Globe - "che cosa?"

Did congress really intend to overturn Barron - or only partially overturn it? Perhaps, the intention was akin to the modern SCOTUS rather odd conception of "fundamental" versus non-fundamental rights?

After the Civil War, it is clear that congress sought to restrict State action BUT can it be said that congress intended to repeal the Federal structure provided in COTUS? Such a position would only confirm the specious allegations made by the Neo-confederates that the Civil War (and Lincoln) were hell bent on completely *centralizing government."

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gabe
on September 19, 2017 at 12:43:03 pm

“Let’s not argue from the basis of our ignorance.”

Then again, maybe I do know? – how about you?

One day Chuang Tzu and a friend were walking by a river. "Look at the fish swimming about," said Chuang Tzu, "They are really enjoying themselves."

"You are not a fish," replied the friend, "So you can't truly know that they are enjoying themselves."

"You are not me," said Chuang Tzu. "So how do you know that I do not know that the fish are enjoying themselves?"

surely, you will admit that LLB is considerably more tolerant than, let us say, FIRST THINGS?

Nah, just lazier. They simply haven't gotten around to expelling me yet.

But consider: Do readers of FIRST THINGS believe the moderators to engage in unwarranted censorship? Well, I'm inclined to think that--but only because I'm aware of being censored. Do the other readers share my perspective?

And if we can't have confidence in the perspective of FIRST THINGS readers, why should we have confidence in the perspective of LLB readers--including ourselves?

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nobody.really
on September 19, 2017 at 13:04:24 pm

The author makes some very good points, but in my view, to characterize that the situation that exists amongst Progressive thinkers is somehow simply a loss or lack of confidence in Natural Law and moral reasoning and principles does not seem to reflect the actuality expressed in their rhetoric; which in my view, can be better characterized as an abject and obstinate denial that these first principles exist.
Paul: “a loss or lack of confidence in Natural Law”

Which version? Aquinas, or Locke? And why should we have confidence in it, in the first place?

Paul: “moral reasoning”

Whose morals? Yours? Can you at least see why that is a deal-killer?
You quote my comments out of context and in so doing misrepresent them….

I sense I may share Miss Creant’s concerns—if perhaps not Miss Creant’s erudition.

I have never been able to wrap my mind around the parameters of “Natural Law.” In the absence of a clearer understanding, I have anxiety about relying on an amorphous standard for purposes of guarding autonomy rights such as free speech. So you might fairly (if unhelpfully) characterize my concern as a doubt that Natural Law “first principles” exist.

Miss Creant seems to have a firmer grounding in Natural Law than I do, but also expresses concern that the concept is under-defined, leading to potentially dangerous ambiguities.

What’s the difference between my remarks and Miss Creant’s? Form: I’m stating my concerns in declarative sentences; Miss Creant presented them as Socratic questions.

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nobody.really
on September 19, 2017 at 14:22:20 pm

And, still, like M.C. you do not read what I have written. Whether you confront me in your manner or M.C.'s Socratic manner, because you fail to read with comprehension, you both automatically feel attacked when I am merely making an observation.

I don't make an argument in any regards in the least to Natural Rights. I merely state, in my view the author mischaracterizes how Progressives view them: The author suggests, if I read him correctly, Progressives merely suffer from a loss or lack of confidence (in N.L.); in my view, Progressives, deny they exist at all, or can be known at all.

One cannot suffer a loss of confidence in something one denies the existence of. That would be like saying, "I emphatically deny there is an Easter Bunny and therefore, I have lost confidence that he will come to my house on Easter this year. "

Now if you wish to confront me with my comprehension regarding what the author is asserting, that would be reasonable, because that would be addressing my statement. If you feel I have misconstrued his point, and wish to then tell me why, I am all ears.

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Paul Binotto
on September 19, 2017 at 14:26:17 pm

The censor, the one censored, and those to whom the censored person complains all know.

My comment is generic. The temptation to censor as a means of "prevailing" in an argument is often overwhelming.

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Miss Creant
on September 19, 2017 at 14:41:54 pm

lOW, our natural rights are those we have, less those we give up in order to co-exist in a civilized society. While few are as eloquent as Justice Wilson--the language above is way too flowery, but he normally expresses himself well--COTUS and its state counterparts outlines what we gave up. This is consistent with what Adams and Madison had in mind, and saves us from having to invent an amorphous definition of "natural law" that we aren't going to agree on.

His comparison of the US and unwritten British constitutions (in Vol. 2) are well worth the read--almost as valuable as the Federalist. He served on the Committee on Detail, which means that he quite literally wrote COTUS. You can read drafts in his own handwriting.

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Miss Creant
on September 19, 2017 at 14:58:43 pm

l can only go by the debate in the Congressional Globe, and the pellucid prose of Section 1. "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" covers the waterfront. While the Slaughterhouse Cases improvidently interred the P/l Clause--forcing the Court to invent SDP--any right protected by the BoR would fall into one of those two categories. As such, we can derive from the text and legislative history is that incorporation was intended to be complete.

G: "BUT can it be said that congress intended to repeal the Federal structure provided in COTUS?"

Yes. lt would be the only way to achieve the stated end: to protect individual rights from encroachment by the States.

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Miss Creant
on September 19, 2017 at 15:30:21 pm

“I emphatically deny there is an Easter Bunny and therefore, I have lost confidence that he will come to my house on Easter this year. ”

....I am all ears.

I can't really improve on that.

Ok, perhaps there is less actual disagreement here than I previously understood, and more differences in emphasis. I apologize if I contributed to the confusion.

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nobody.really
on September 19, 2017 at 16:28:13 pm

LME(ars)O! :-)

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Paul Binotto
on September 19, 2017 at 17:34:00 pm

nobody & Miss Creant:

Let us not confuse government censorship with the actions of a private entity.

I suspect (know) that some sites will censor comments that are deemed offensive (not the SJW version, but rather commentary that is clearly a personal attack upon another) and / or commentary that is obscene.

As I said earlier, I have no issue with this. to me it is akin to a head of household requiring family and guest to refrain from obscene / disrespectful behavior at the dinner table. BIG DEAL.

Then again, I have no problem with the owner of an NFL team telling the players that they are not to use the playing field for political protests. Players who do so mistake the nature of the "platform that they have been given" (a common line from some players). Your platform, for which I pay dearly, is an athletic platform and THAT platform is owned by the owners - a private entity.

Where i have a problem is with the gummint telling the players or me that i cannot express my own knucklehead opinions. However, if I worked for the NFL, and when on NFL time, I would simply STFU.

seeya

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gabe
on September 19, 2017 at 17:40:42 pm

Yeah BUT:

The Globe may not have captured all that Bingham had to say about it. Numerous times when confronted with just such a question, Bingham denied that the amendment would, nor was it intended to, accomplish such an "de-structuring" of the COTUS Federal paradigm.

I suspect that the Globe reflects only floor debates and those of the Radical Republicans may have been (inadvertently) given promience.

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gabe
on September 19, 2017 at 19:57:10 pm

Miss Creant, I am surprised by your use of the word "flowery" to describe Wilson's language. It seems to me that his deliberate use of phrases like "tender affections" and "moral sense" and "perfection" place him unambiguously in the anti-Lockean natural law current of thought that includes the likes of Cicero, Cumberland, Hutcheson, Burlamaqui and Vattel.

However, a caveat is in order: Hutcheson and Burlamaqui represent two wings of mid-18th-century controversy on the source of virtue -- moral sense (conscience) versus reason. The Philadelphia Philosophy of James Logan and Benjamin Franklin echoed common-law jurisprudence in identifying BOTH reason and conscience (also called "moral sense") as necessary for the mature development ("perfection") of human nature, expressed as habitual benevolence, and the prerequisite for HAPPINESS. This is presumably the philosophical divide (overemphasis on either "reason" or "moral sense") that necessitated Jefferson's "harmonizing sentiments" as he wrote the Declaration of Independence.

"Reason," of course, was the preferred legal synonym for "natural law," as stated in St. Germain's "Doctor and Student" --the common-law handbook for translating natural-law principles into judicial decisions -- which also discussed "conscience." And of course "reason and good conscience" were the paired authorities for the Continental Congress to formally break with the King of England in May (not July) 1776.

Regarding definitions of natural law, in the spirit of originalism, perhaps we should turn to leading authorities used by the founders: St. Germain and Vattel.

For St. Germain --writing early in the 16th century, online at https://lonang.com/library/reference/stgermain-doctor-and-student/sgm-102/ --:

"The law of nature specially considered, which is also called the law of reason, pertaineth only to creatures reasonable, that is, man, which is created to the image of God.

"And this law ought to be kept as well among Jews and Gentiles, as among christian men: and this law is always good and righteous, stirring and inclining a man to good, and abhorring evil. And as to the ordering of the deeds of man, it is preferred before the law of God, and it is written in the heart of every man, teaching him what is to be done, and what is to be fled; and because it is written in the heart, therefore it may not be put away, ne it is never changeable by no diversity of place, ne time: and therefore against this law, prescription, statute nor custom may not prevail: and if any be brought in against it, they be not prescriptions, statutes nor customs, but things void and against justice. And all other laws, as well the laws of God as to the acts of men, as other, be grounded thereupon."

Of course Sir Edward Coke, in Dr. Bonham's case, wrote the Thomist "void and against justice" principle into case law -- a legal precedent that was overthrown by Parliament and the servile Blackstone with the innovative doctrine of parliamentary sovereignty--and Great Britain's attempt to apply "parliamentary sovereignty" in the colonies of course led to the Declaration of Independence.

For Vattel, the preeminent authority and guidebook for the Continental Congress as they moved toward independence and confederation--online at https://lonang.com/library/reference/vattel-law-of-nations/vatt-001/ --

"Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow-creatures, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. We have instances of persons, who, having grown up to manhood among the bears of the forest, enjoyed not the use of speech or of reason, but were, like the brute beasts, possessed only of sensitive faculties. We see moreover that nature has refused to bestow on men the same strength and natural weapons of defense with which she has furnished other animals — having, in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge; and having thus become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover, is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since, therefore, nature has thus formed mankind, it is a convincing proof of her intention that they should communicate with, and mutually aid and assist each other.

"Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself: a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common Creator — a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the general obligation that binds us to the observance of our duties: let us fulfill them with care, if we would wisely endeavor to promote our own advantage.6

"It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that we have just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. Let us therefore endeavor to promote the general happiness of mankind; all mankind, in return, will endeavor to promote ours, and thus we shall establish our felicity on the most solid foundations."

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John Schmeeckle
on September 19, 2017 at 20:02:05 pm

"Bingham denied that the amendment would, nor was it intended to, accomplish such an “de-structuring” of the COTUS Federal paradigm."

The more precise statement is that it modified the paradigm, and it is hard to credibly argue that it wasn't for the better. Mea culpa.

And he would have been right. The States remain as sovereigns; all it means is that the States are now bound by the limitations imposed by the BoR. This is no different than their being required to provide a republican form of government and give full faith and credit to the official acts of other States, or being prohibited from entering into treaties.

Today, it actually works backwards. States can (and do!) provide more protection against rights violations by their agents, but never less.

l've never understood why this bothers people. Why are you discomfited by it?

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Miss Creant
on September 19, 2017 at 20:10:03 pm

l'm sorry that you took offense. None was intended. NRS and l read it the same way.

Paul: " in my view, Progressives, deny they exist at all, or can be known at all."

This was what l wanted to explore. How can natural law be known, if it is not summarized by Wilson? That we have the natural right to walk around naked (and a lot of other things), but agree to cover up in deference to our neighbors.

As it pertains to speech, how much of it do we give up? And where do you find conclusive authority for your position?

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Miss Creant
on September 19, 2017 at 20:47:50 pm

Please pardon my joining your conversation with Mr. Gabe.

Of course the BoR does not posit any rights originating with Constitution, but merely it enumerates rights that would belong to all people, as a right of their nature, whether there was a Constitution or not, or whether they were specified/enumerated or not; existing as a natural right.

Wasn't there much debate over the wisdom of enumerating rights in the form of a BoR, for this very reason; the concern being that citizens would come to believe (as they have too often) that 1) these rights come to them as positive law (that could just as easily been denied to them); and 2) that the limit (sum total) of ones rights are limited to those contained in the BoR?

If you consider the BoR in this light (as an enumeration of, not positing of, [natural] rights) then these (natural) rights already extended to/bounded the States as much as the Federal, with or without the 14th. In this view, does the 14th really not just extend the reach of the Fed to the States, where previously, to the 14th, the Feds would not possess an avenue of reaching States? - i.e. the State may violate a (natural/civil) right of a citizen, but the Fed. was restrained/powerless/disinterested to involve itself from reaching into the State to enforce the (natural/civil) right.

Up until the 14th, if the State violated a citizen's civil right, was not the citizen essentially at the mercy of the largesse of the State to protect/provide him/her relief or not, and without recourse to the Fed. if the State failed to provide rightful relief?

It may be, that the States did not believe themselves (and that the Fed did not believe either) that the BoR extended to the States, but if the BoR is viewed as rights not posited, but pre-existing to all human, by right of their nature, this is a misunderstanding on the part of the State & Fed. A State could indeed deny(say for instance, permit them to be enslaved) its citizens any right that they are entitled to by right of nature, but that doesn't mean the State has any more right to deny the citizen these rights any more than George III, and that State can rightly be considered as acting in a tyrannical manner. No?

At least this is how I have, as a layman, come to understand it.

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Paul Binotto
on September 19, 2017 at 21:26:07 pm

I did not take offense. I merely was suggesting your are confronting me with a premise I did not advance in my comment.

When the right has reached to the level of absurdity, as walking around nude in public, may be a good place to delineate, for starters.

People act as though they have not been endowed with common sense as well of moral sense. Simply by realizing that it would be inappropriate to walk around naked in public out of deference to neighbor, you are already, in fact, practicing natural law.

It ain't rocket science, its plain operation of what we used to call old fashioned horse sense. And, just because its old, doesn't mean it is less valid today, than then. And, speech is no different. Nor Identifying its limits.

As example, one that Hadley Arkes likes to give: poorly paraphrasing: 1) you are walking down the street to your house, and there is a group of teenagers blocking your passage because they wish to delineate their "territory". 2) Same scenario, but this time, you are walking to your house, and you see fire trucks and police cars, and there is a barricade blocking you from reaching your house? Which, 1 or 2, is a violation of your right to move about freely and which is justified?

People will deny there are absolute truths, but then turn around and demand absolute proofs. Sorry, Miss, I can't give you what you don't already have. You are not going to get there if you only accept as true that which comes to you by the scientific method. Or if you deny, that philosophy, poetry, and religion also bear within them, knowable truths.

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Paul Binotto
on September 19, 2017 at 22:03:45 pm

I just realized I was remiss of attributing (by paraphrase) the last two sentences above:

"You are not going to get there if you only accept as true that which comes to you by the scientific method. Or if you deny, that philosophy, poetry, and religion also bear within them, knowable truths."

to Bishop Robert Barron from his recent Facebook Lecture. Which I highly recommend: https://www.facebook.com/BishopRobertBarron/videos/1533520986687023/

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Paul Binotto
on September 19, 2017 at 23:37:19 pm

I am not impressed with Mr, Haun's argument. When he says

Free speech absolutism is, to begin with, a position that lacks a basis[ ...] in the reality that only a people capable of controlling their passions are capable of preserving self-government

this seems to me exactly backward. If a people's passions are uncontrollably loosed by mere words, those people are probably not good candidates for self government, lacking self control when confronted with unwelcome speech.

I share others' ambivalence regarding Natural Law. The term itself is ambiguous, seeming to refer to anything from what are more concisely called "facts," to mystical diktats from the unseen, to the socializing instincts observed in human nature. Each of these things is something, but that does not qualify any of them as a system of universal principle. If any proposition is said to be part of "Natural Law," I think it is reasonable to challenge the basis of such assertion, and ask the proponent to explain why he it thinks it so.

I am similarly unmoved by Mr. Haun's references to "socially unvaluable speech." This is mere hand waving, and does not account for the notion that what is "socially valuable" or "unvaluable" is a subjective opinion, nor for the observable phenomenon that values and opinions change.

What I found most unsatisfying about Mt. Haun's essay is that it seems to be more of a product placement for Natural Law than it is an exposition of discrete principle. Even if one disagrees with these propositions, I think it more useful to state and be willing to defend such notions as:

1.) Words are not violence; (Maybe the confusion came from Roberta Flack, Killing Me Softly)

2.) Words can hurt people's feelings; they can sow discord; they can stir passions. None of these facts legitimize violence, or the use of force;

3.) The use of force to control the words that a person uses in public discourse is unjust, regardless of whether that force originates with private individuals or agents of the state;

4.) There are no ideas so irresistibly compelling that they can only be countered by force, and if such ideas did exist, force would not prevail against them.

I am reasonably well-convinced, for example, that market economies and democratic institutions are superior to alternatives, but I do not hold that such views are unassailable, nor that it be demanded of anyone to think likewise, contrary to his own reason. That seems pretty natural to me.

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z9z99
on September 20, 2017 at 08:27:08 am

"Then again, I have no problem with the owner of an NFL team telling the players that they are not to use the playing field for political protests. Players who do so mistake the nature of the “platform that they have been given” (a common line from some players). Your platform, for which I pay dearly, is an athletic platform and THAT platform is owned by the owners – a private entity."

Or to put it another way, you have a right to express your boss's opinion. lf he doesn't like your politics, he can fire you. Guess we'll all have to use pseudonyms. :)

Did you approve of Tim Tebow's antics? And if so, aren't you employing a double-standard?

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Miss Creant
on September 20, 2017 at 09:17:26 am

Paul: "When the right has reached to the level of absurdity, as walking around nude in public, may be a good place to delineate, for starters."

lf you lived on a desert island, you could walk around without a stitch. That is a natural right. But we agree to give up that right in our society, as a courtesy to our fellow-men. That is a simple illustration of what Justice Wilson said about natural law. That you would likely regard is as "absurd" is precisely why l used it--it makes the point cleanly.

"Simply by realizing that it would be inappropriate to walk around naked in public out of deference to neighbor, you are already, in fact, practicing natural law. "

We have agreed as a society that you can't do this, and have enacted laws to that effect. (But if Lady Godiva rode down your street on a horse, you probably wouldn't object. :) ) What l am doing is putting meat on the bones of natural law. Some societies compel women to wear the chador and hajib. Others allow topless and even nude sunbathing. Natural law does not prescribe the acceptable level of dress.

"And, speech is no different. Nor Identifying its limits."

We have identified limits on what we speech will tolerate as a society, and codified them as laws. Canada has "hate speech" laws. We don't. ln short, natural law does not limit speech, but it recognizes a society's right to regulate speech through laws. And for good or ill, we have chosen to place as few restrictions on it as we can get away with.

“You are not going to get there if you only accept as true that which comes to you by the scientific method. Or if you deny, that philosophy, poetry, and religion also bear within them, knowable truths.”

Like "Philosophy is useless, theology is worse"? l think Nietzsche, and cringe. :)

Law cannot penetrate another man's mysticism. As an example, l can read C.S. Lewis's Case for Christianity and find an incorrigible refutation of Christianity. Or l can read the Tao te Ching, and find incorrigible insight into the human condition. Does my reading prevail over yours and if not, why not?

Natural law appears to leave mysticism to the individual.

Law is not interested in "Truth." lt is about the rules that govern a society. All "natural law" does is get us to the starting point.

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Miss Creant
on September 20, 2017 at 09:25:40 am

Dear Miss,

You have said much and have said nothing. You will forgive me for saying, I find you exhausting - tax law is tedious, natural law is not.

Bless you,
Paul

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Paul Binotto
on September 20, 2017 at 09:31:52 am

You got it exactly right, Paul.

Natural law is a substrate, upon which our COTUS is built. The purpose of COTUS is to preserve the natural rights we have retained, and before the 14Am, you were literally at the mercy of the State.

l've never understood why people on the Right have so many problems with the 14Am. They jes' hates them that Big Gub'mint, but seem utterly oblivious to the fact that States can be every bit as tyrannical and heavy-handed.

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Miss Creant
on September 20, 2017 at 10:08:30 am

Justice Wilson, for the most part, spoke with efficiency and clarity. l had difficulty digesting that passage, which is not normal.

lf there is a confluence between philosophy and law, it was surely an accident. :)

"It seems to me that his deliberate use of phrases like “tender affections” and “moral sense” and “perfection” place him unambiguously in the anti-Lockean natural law current of thought"

But as the passage you cited reveals, they get to the same equation. The difference is that Locke is a 787 and Wilson, et al. rode a Chinese junk. All l care about--see my remarks to Paul--is the fact that we got there.

"Of course Sir Edward Coke, in Dr. Bonham’s case, wrote the Thomist “void and against justice” principle into case law — a legal precedent that was overthrown by Parliament and the servile Blackstone with the innovative doctrine of parliamentary sovereignty–and Great Britain’s attempt to apply “parliamentary sovereignty” in the colonies of course led to the Declaration of Independence."

This was the fundamental problem Britain tried to solve: Somebody has to make the final call, and that person is your Ruler. "King" was a hereditary position. Judges are not accountable, either. Since the people are the ultimate sovereign ("King" is an office, held in parens patriae), it makes some sense to vest that ultimate power in the people's representatives. The problem in the Colonies was not that Parliament was supreme, but that King George lll wielded that power, and in an arbitrary and capricious manner.

(FWlW, Dr. Bonham's Case is still good law (see e.g., Calder v. Bull; Tumey v. OH; ln re Murchison), which l have cited to modern courts for its core proposition (which you also find in Hobbes and the Federalist).)

" [StG] “The law of nature specially considered, which is also called the law of reason."

Law is all about reason. Reason and religion don't get along very well; Christianity is a comically irrational faith.

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Miss Creant
on September 20, 2017 at 11:31:12 am

"You will forgive me for saying, I find you exhausting – tax law is tedious, natural law is not."

Al least, l can tell you what tax law is. You can't tell me what natural law is or is not.

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Miss Creant
on September 20, 2017 at 12:09:32 pm

The only rigor in the Haun essay is intellectual rigor mortis.

lf you can't use incorrigible propositions to define natural law, you can't define natural law. As Aquinas relies on the objectively untenable assumption that his god and no other exists, his system must fail. As Locke does not, his remains viable. But as l have pointed out, we still get to the same starting point.

What are your natural rights? Anything you can do whilst on an island alone.

When you enter into a society, you give up some of those rights. But the transaction itself is not governed by natural law. You can agree to ban hate speech, but you don't have to.

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Miss Creant
on September 20, 2017 at 13:20:58 pm

Something tells me you would be quite comfortable on all alone on an island, and even then there would be little chance to get a word in edgewise... I would be comfortable exiling you to one. :-) I already know beforehand, that I am going to regret this, but here I go anyway:

It is my position, that a person enters into society, with the person of his/her mother, at conception, therefore, natural law, would preclude his/her mother from taking that other person's life in side her, even if she were to find herself post-coital, alone on a desert island with no one else but the newly conceived person in her womb. Furthermore, it would preclude her from taking her own life, whether pregnant or not.

As to Aquinas, answer this: if his God is Omnipotent, Omnipresent, Omniscient wouldn't these attributes alone be enough to objectively conclude that his God can be objectively, the only t one true God to exist?

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Paul Binotto
on September 20, 2017 at 13:29:10 pm

Perhaps, but I can tell you exactly what you are, and it may or may not be N.L. that keeps from telling you. :-)

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Paul Binotto
on September 20, 2017 at 14:01:41 pm

I'm American military living in Germany. Nazi speech, images, or advocacy are crimes here. They didn't do this for silly or absurd reasons. Nazi speech should not be protected. Those speaking out against it oppose a real menace with historically huge criminal intent. Advocating for Nazis should always be opposed.

Similar for confederates. They took up arms, formed an army, and waged a war they started against the USA. By definition this is treason. Further, they did this to defend the right to own, traffic, work, and abuse slaves. This is not a defendable position. It should always be opposed.

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Mikehorn
on September 20, 2017 at 14:30:34 pm

It seems to me that there are two separate questions here:

(1) Is the classical Christian (Thomist) adaptation of Ciceronian natural law, involving an omnipotent, omniscient and benevolent God (a position embraced by James Wilson as fundamental to the legal theory of his day), the jurisprudence that underlay both the Declaration of Independence and the Constitution? It seems to me that the answer to that question is clearly "yes."

(2) Is this way of thinking, essential to an "originalist" interpretation of our founding documents, intellectually viable?
Miss Creant is inclined to dismiss this system out of hand, but summary dismissal is a real conversation stopper. Is it possible for Miss Creant to engage, for the sake of argument, with the opposing point of view? This commonplace Founding view (of an omnipotent, omniscient and benevolent deity) is not necessarily "Christian" -- the so-called "natural religion" of the time embraced this understanding of God as well.

Finally, regarding Miss Creant's Lockean understanding of natural rights, there is no reason to believe that the American founders saw natural rights in this way, and there is no reason to imagine that isolated individuals in a "state of nature" join together to form a society. Society, as an extension of family, is an essential feature of human nature.

I've already given the anti-Lockean example of James Wilson regarding natural right. It makes sense to check the varying definitions of "natural right" found in Hutcheson, Burlamaqui, and Vattel, all of whom were strong influences on the founding generation.

Here is Hutcheson's definition of natural right: “Whenever it appears to us that a faculty of doing, demanding, or possessing anything, universally allowed in certain circumstances, would in the whole tend to the general good, we say that any person in such circumstances has a right to do, possess, or demand that thing. And according as this tendency to the public good is greater or less, the right in question is greater or less.”

For Burlamaqui, as paraphrased in the Declaration of Independence, the purpose of government is to “secure” to the people “the full enjoyment of their rights,” defining right as “whatever reason certainly acknowledges as a sure and concise means of attaining happiness.”

Vattel states that right is “nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty—it is evident that right is derived from duty.”

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John Schmeeckle
on September 20, 2017 at 14:53:40 pm

Miss Creant:

Please know, I haven't any ill-will against you and any 'little digs' I've been attaching to my replies are intended only as good-fun. I hope you took them that way, and I apologize if you have not.

You are obviously someone who is without question, highly intelligent and articulate. Just for the record, are you sure you really aren't LawDog in disguise? Since you came onto the scene, he has been noticeably absent. Of course, I don't think LawDog could hold out so long as you have without cussing me out.

Best, Paul

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Paul Binotto
on September 20, 2017 at 15:37:45 pm

Paul: "As to Aquinas, answer this: if his God is Omnipotent, Omnipresent, Omniscient wouldn’t these attributes alone be enough to objectively conclude that his God can be objectively, the only t one true God to exist?"

You're assuming critical facts not in evidence. You can have One True God that doesn't happen to be yours.

ls Aquinas's god OOO, or the god down the street? YHWH appears to be just another tribal god, who got some of "his prophecies" wrong. As an omniscient god would never utter an erroneous prophecy (remember that we found Tyre, and people lived there continually throughout the centuries), Aquinas's god cannot possibly be the One True God. When you say that the "uncircumcised" shall not enter Jerusalem again, you really have to give that memo to the Romans and Arabs. :)

lt is not objectively reasonable for an omniscient and omnipotent god to have to feign a sacrifice of himself to himself to change a rule he made himself. The omniscient god wouldn't have made such a ridiculous rule in the first place, and the omnipotent god would simply change it because she can. The sheer absurdity of Christian dogma argues conclusively against Aquinas's god being the One True God.

Paul: "It is my position, that a person enters into society, with the person of his/her mother, at conception, therefore, natural law, would preclude his/her mother from taking that other person’s life in side her, even if she were to find herself post-coital, alone on a desert island with no one else but the newly conceived person in her womb. Furthermore, it would preclude her from taking her own life, whether pregnant or not."

Why? Where do you find this "natural law"?

This is why l'm after you to explain how you get to "natural law." ln my view of natural law, she can pop RU-486 like M&Ms (OC, if she has them) because she can. And if she has an incurable disease that would cause intense suffering, why can't she kill herself? lf she has cyanide available, why can't she take it?

Why should we adopt your natural law, as opposed to mine? Or NRS's?

Unfortunately, l have to err on the side of being pedantic to illustrate the errors in your reasoning, as they can be subtle.

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Miss Creant
on September 20, 2017 at 15:49:01 pm

Ahhh, you have answered my other question above; you are in fact LawDog. Your words here have given you away. Nice try, posing as Miss Creant. You almost had me convinced otherwise.

Hope that knee is improving, Mr. Dog!

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Paul Binotto
on September 20, 2017 at 16:33:52 pm

Missy:

Actually, I did not approve of either timmy Tebow's antics or his play! - Ha!

And no, you do not have to express your boss' opinion - it is simply that while he / she is paying you (or in the case of the NFL, I AM PAYING you) CONCENTRATE upon the task for which you are being (rather handsomely) paid. If a star defensive back wants to rant about the Flag, BLM, etc while on a TV show, rubber-chicken circuit, or just shooting the breeze with the boys - GO RIGHT AHEAD. should the Boss object - too bad.

Then again, this certainly appears to be more of a problem for the Lefties of the country - see Mozilla, Google, Amazon, Apple, etc etc etc - OOPS - and how could I forget ESPN (otherwise known as Every Sportswriter Political Now). Seems to me that all the *firing* is belong done by Lefties.
Recent story out of the UK to show just how bad the Left is and the extent to which they will go to censor:

A middle school teacher instructed her clas to cease talking to the child of an Member of Parliament - BECAUSE the MP was conservative. Heck, I guess, if you can;t fire the MP - why not just abuse the child.

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gabe
on September 20, 2017 at 16:59:57 pm

Missy:

And now, perhaps, we come to understand why Scalia was *hesitant* to agree to allow the Judiciary to "fiddle under their robes" with unenumerated rights - which in another vernacular translates as natural rights.
What are they? It would seem that, at least as you appear to use them as a debating tactic, natural rights DO NOT also entail CORRESPONDING *obligations*.

What results is an un-tethered soul, devoid of attachment to place, country, culture and tradition. while it may be possible for the LAW to allow this, one can argue that, at least from a societal / cultural standpoint, it ought not to be permissible. Can such a civic association sustain itself without recognizing those obligations consequent to all these "natural" rights?

So which shall it be, Missy? The cornucopia of rights which you frequently extol - or the pure positivism of THE LAW which you also herald?

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gabe
on September 20, 2017 at 17:03:00 pm

John: "It seems to me that the answer to that question is clearly “yes.”"

And it seems to me that the answer may not be. What Locke did in his Second Treatise was validate the Deist worldview, establishing that you didn't need a particular flavor or ancient tribal sky-pixie to make NL work (he was virulently opposed to Deism, fwiw). The schism between Thomism and the deistic heresy was real, but if both can get you to where you need to go, you need not favor either one.

John: "(2) Is this way of thinking, essential to an “originalist” interpretation"

This is where l would respectfully disagree. Deism changed the game. Whereas the Bible taught of the divine right of kings, the Dissenters countered that there should be no King but the law. There is a straight line from Hobbes to Locke to COTUS, and you don't need a god to ride that bus. Ergo, it is not "essential."

John: "Miss Creant is inclined to dismiss this system out of hand, but summary dismissal is a real conversation stopper. Is it possible for Miss Creant to engage, for the sake of argument, with the opposing point of view?"

How does it change the equation? You take the 405 and l'll take the 5, and we'll both end up in downtown L.A. The "road" here is from original principles to "originalism." l was trying to get Paul to reason from incorrigible principles to his version of "natural law," and l cordially invite you to take up the challenge.

John: "the so-called “natural religion” of the time embraced this understanding of God as well."

Deism embraced the notion of a clockwork universe; the brightest intellectual lights of the day were deists and freemasons. They were in the process of estrangement from traditional Christianity but for pragmatic reasons, only Thomas Paine actually filed for divorce. Franklin took the Fifth, and Jefferson never published "his Bible." They needed to "speak Christian," and if you apply it selectively, you can make the Bible say what you need it to. But the "natural religion" of the day was more hinayama than most seem to think.

John: "Finally, regarding Miss Creant’s Lockean understanding of natural rights, there is no reason to believe that the American founders saw natural rights in this way, and there is no reason to imagine that isolated individuals in a “state of nature” join together to form a society."

l think it is about 30 pages into Leviathan, where Hobbes notes that in a state of nature, life is "nasty, brutish, and short." Coming out of a state of nature, entering into a civil society is usually a rational act. Pretty much everyone read Hobbes and Locke. And that is exactly what an immigrant did, leaving his society to enter into ours. Your objection does not appear to be tenable.

John: "It makes sense to check the varying definitions of “natural right” found in Hutcheson, Burlamaqui, and Vattel, all of whom were strong influences on the founding generation."

l would respectfully disagree with your characterization: You could make the argument wrt Vattel, but no one seems to find either Hutcheson or Burlamaqui to be particularly influential. But let's work with this: "right [is] “whatever reason certainly acknowledges as a sure and concise means of attaining happiness.“"

lf Fred and Ted reasonably think that getting married will make them happy, it logically follows that they should have the right to get married. There would have been nothing to stop Robinson Crusoe from marrying Friday. Ergo, it logically follows that SSM is a natural right.

l get there from contract principles. The right to contract is an essential corollary of the right to acquire, own, and dispose of property. Marriage is a simple contract (and was before it was a sacrament!). The government can only impair rights and then, only when it can show that it needs to. No one could show cause as to why Ted and Fred should not wed. Therefore, we pronounce them husband and husband. :)

Let's try Vattel: "right is “nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty—it is evident that right is derived from duty.”"

The weasel-word is "morally." Who gets to define what is "moral"? And exactly who do l owe a "duty" to? As a practical matter, l owe a duty to my fellow citizens to obey the law, but that is just part and parcel of the social contract. l fail to see how this is any different from my restatement of Wilson.

The difference is that l start with an objective first principle, whereas the Thomist is forced to wade through the mire of religion.

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Miss Creant
on September 20, 2017 at 17:26:50 pm

First and foremost, l abjure the notion of "positive law." Unlike Scalia, l am an originalist. The government can only impair natural rights. Read one of Randy Barnett's books and get back to me.

gabe: "What are they [natural rights]?

l agree with Madison: l can't list them all, and think it sheer folly to even try.

A paradigmatic illustration of an unenumerated natural right involved young William Penn, the Quaker who established the colony of Pennsylvania. He was arrested for holding a religious observance outside of his meeting hall, after he and his congregation had been barred entry by the Crown. He had what might seem to us today to be a peculiar quirk: He refused—as a matter of religious belief—to remove his hat in deference to authority. Thus, he refused to wear his own hat to the ensuing trial, so that he wouldn’t be placed in the position of having to not remove it when the judge entered the courtroom. Angered, the judge had the bailiff place a hat on Penn’s head, which he refused to remove; he was then fined forty marks, ostensibly for insulting the dignity of the Court. The People’s {Ancient and Just} Liberties Assrted in the Tryal of William Penn and William Mead (Sept. 1670). Penn’s trial was so infamous that it was common currency to every member of the First Congress, Michael McConnell, (retired judge, Tenth Circuit Court of Appeals), Natural Rights, Enumerated Rights, and the Ninth Amendment, The Sumner Canary Lecture (Case Western U., Oct. 28, 2008), and even the suggestion that a Bill of Rights would not have protected his progeny surely would have been anathema to those who enacted it. See, 1 Annals at 759-61.

In a land where “all men are created equal,” The Declaration of Independence, para. 2 (U.S. 1776), the right not to genuflect to a superior authority is necessarily implicit, irrespective of whether that refusal was borne of religious conviction. As such, Penn’s was not a “religious” right protected by the First Amendment. But it would seem, on its face, to be so trivial a matter that it could easily be found to be “non-fundamental.” And therein lies the rub.

Citing Madison, l take the position that all rights are fundamental; the only question is whether government has lawful authority to impair my exercise of them.

gabe: " It would seem that, at least as you appear to use them as a debating tactic, natural rights DO NOT also entail CORRESPONDING *obligations*."

l have the right to make widgets, but have a corresponding obligation not to dump untreated effluent into the river. But those obligations are imposed by statutory law, as opposed to natural law.

gabe: "So which shall it be, Missy?"

l find no contradiction. l retain all of the natural rights that l did not give up, and can exercise them as l see fit, subject only to obligations or restrictions imposed by law.

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Miss Creant
on September 20, 2017 at 17:57:49 pm

Not necessarily. There is nothing in COTUS that prohibits secession, which is markedly different from waging war on the USA. To be blunt, Lincoln acted without foundation in law. (Note that COTUS did not outlaw slavery at the time; the ostensible purpose of the decision to secede was economic--high tariffs benefiting the North caused hardship.)

This may seem hyper-technical, but technicalities are often the soul of the law.

No one can defend slavery, except the god of the Bible--who handed down rules on the treatment of slaves (see also, the letter to Philemon). :) lf you read his draft of the Dol, you will find that Thomas Jefferson was forty years ahead of Wilberforce--hope the anti-statute militants don't go too far.

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Miss Creant
on September 20, 2017 at 18:59:56 pm

Missy:

Surely, you do not accept the "literal" Lockean contract?

Men and women DO NOT transit from a state of nature INTO a social contract. To argue thus, would be to deny that humans are *political animals*, and that this attribute of humanity PRE-dates a "contractually" ordered political society.

In short, the society has evolved over time *immemorial*, bound as it is with innumerable traditions, customs, beliefs AND, yes, moral codes, all of which have contributed to the self perception of those who would include themselves in that society.

There, is thus nothing "weasel-lly" about morals.

Yes, THE LAW does factor in to the societal equation, perhaps only as an intended equilibrium; yet, it may also be said that LAW is simply a codification of those beliefs, practices, customs, AND morals that this particular society has found conduces to its' *happiness.* Often times, that societal happiness comes at the cost, or diminution of individual happiness as the sphere of personal autonomous actions is / was proscribed - either by custom, tradition, or morals. To assert that SSM is derivatively a "first principle" is both haughty and specious - unless, of course, the LOCKEAN model is to hold sway and we are contemplating a NEW Lockean contractual undertaking.

It may also be advanced that *natural* right is simply a derivative outcome of custom, tradition, morals, etc., all of which are subject to change over time. If you wish to argue that what we are currently experiencing is no more than a response to changed custom, etc., you would be on somewhat more solid, if positivist, ground. But to argue that SSM is a reflection of *First principles* badly misstates / misunderstands social construction; as for contracts, I will leave that to you but two parties may not enter into a contract that is deemed harmful to others (happiness? of society). Again, I really have no dog in this fight, but what if that society finds it does not conduce to societal happiness (whatever happiness is). Did one enter into a society that for generations considered its happiness to be threatened by SSM (as clearly this society did). How then can this be a first principle; how then can one change (in your terms) the contract? Only through the use of the positive LAW.
I will concede that over time the LAW, if it reflects the changed perception of what is conducive to societal happiness may very well effect a change in moral thinking, re: SSM, - but it is NOT a first principle.

And yes, "rights" may not be derivative of duty; they, are however, a corollary of duty or OBLIGATIONS.
(Sort of like an immigrant coming to our shores, demanding benefit payments BUT not accepting any responsibility to conform to our language, customs, traditions. Hey, paisano, be a little more *obliging*, will ya!)

seeya

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gabe
on September 20, 2017 at 19:13:44 pm

Oops, forgot this:

1) You chastise Paul for arguing from first principles - YET, you yourself ultimately make the same claim; only difference is that YOUR first principles are more acceptable to YOU. Upon what is your set of first principles based. Don't tell me COTUS as I can argue (and you have also done so) that COTUS holds no *immortal truths*, that it is a reflection of many factors, traditions, customs, etc. If paul doesn't get to embrace first principles, neither shall you.

2) As to Deism: The notion that our founders were pure Deists is at best debatable. One may easily retrieve "dueling" quotations that would present these same *deistic* founders as far more accepting of Christianity AS WERE their actions in supporting local Christian churches and repeated claims that this republic was designed for, and required for its sustenance, a Christian people.
Heck, arguing in the alternative, one could claim that, as these were men of the Enlightenment, where it was considered fashionable to be anti-Church, the Founders simply did not want to be viewed as parochial amongst their *enlightened* friends and intellectuals.

They had the wisdom to outlaw "dueling" - a decision, I try to respect as it usually results in some sort of *butchery.* - Ha!

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gabe
on September 21, 2017 at 01:20:53 am

Secession was first and always about slavery. How do I know this as bald fact that flatly contradicts you and classifies your tariff idea as utterly false? The secession documents of the seceding states state flatly that slavery is the reason. They feared Abraham Lincoln, who ran on a platform of (legally and constitutionally and peacefully) prohibiting slavery in territories and new states.

COTUS does give specific guidance on secession, anyone saying different is simply wrong. There is a history of framers and scholars discussing it over decades. While states ratified the constitution separately by independent state conventions, once ratified COTUS becomes the supreme law of the land under Article VI. Under article V the only way to alter the constitution once ratified is by amendment, which requires a high bar and supermajority of multiple states. One state by itself cannot alter the constitution and it remains the supreme law unless amended otherwise. That means one state cannot unilaterally leave. It means elections you disagree with are still binding. That means Abraham Lincoln was the president and secessionist States were traitors that acted unconstitutionally. The constitution also codifies the idea of an inherent right to revolution into our election system and divided government. The 1860 election could be partially overturned in 1862, completely in 1864. Before that you had existing legislatures that could block any moves Lincoln tried to make, or fail within the law and constitution. The courts remained, and the Chief Justice at the time, Taney, was a slaver and southern sympathizer. He remained in office until he died in 1864. As long as elections happen and representation at house and senate exist and courts exist, there is exactly zero moral or legal justification for violent revolution, secession, or treason. The southern states were guilty of all three.

Tariffs were after-the-fact excuses people thought up to cover and whitewash the civil war. It is a false narrative. We have a record of both what really happened and how the tarrif narrative was created and when. The tariff reasoning started after the civil war, created by people trying to rewrite history into something less horrific and vile and flatly illegal. That means that the reasons we actually fought it were different. It is false, created by klansmen and unreformed traitors and southern apologists and.... there isn't a single honorable segment of America that supported that idea. History and facts easily and commonly availble utterly refute it and label it at best ignorant nonsense.

About the Bible and slavery, you are correct that the stronger biblical argument was and is pro slavery. There are stacks of clergy sermons demonstrating this. They are collectively one of the strongest arguments against "traditional" biblical morality and biblical literalism because of the utterly immoral, hateful, racist view they describe. Catholicism started to move away from this centuries earlier, and Catholicism does not consider the Bible to be literally true, and that the bishops and popes retain authority to interpret and teach. This means that the majority of Christians worldwide (though an American minority in 1860, mostly Irish catholic immigrants that were a strong presence in the union army) did not support the view of pro-slavery Protestant clergy in America. Further, Protestant England had already outlawed slavery and the slave trade as morally repugnant. Since England was still the dominant navy in the Atlantic Ocean, this effectively ended the international part of the slave trade.

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Mikehorn
on September 21, 2017 at 05:00:35 am

gabe: "Upon what is your set of first principles based[?]"

Let me ask it this way: lf you were alone on a desert island, what could you do that is NOT your natural right to do--and if not, why not?

l am saying that that is our portfolio of natural rights. lf l am wrong, please explain why l am wrong. Give me an example that invalidates the postulated rule.

Wilson, et al., express natural rights as the rights you retain AFTER you enter into a society. l am doing what Hobbes did in Leviathan: postulate the existence of a man in a "state of nature." Mowgli. Robinson Crusoe. Valentine Michael Smith. All l am saying is that you start where l did and (a) give up some of your rights and (b) assume certain obligations as a condition of entering into a given society, you end up where Wilson was. And as for the scope of natural rights, Madison used the same formulation as l, assuming that natural rights are illimitable, and that we retain them until we cede them. Basic contract law principles.

gabe: "Surely, you do not accept the “literal” Lockean contract?"

l accept it in the same way l accept Adam Smith's supply-demand curve: lt is a tool for analysis. You'll never get to a truly perfect free market, but the principles are useful nonetheless.

gabe: "In short, the society has evolved over time *immemorial*, bound as it is with innumerable traditions, customs, beliefs AND, yes, moral codes, all of which have contributed to the self perception of those who would include themselves in that society."

....and they have evolved differently in different places. The lnuit and Maori moral codes were different from the British one we are familiar with, which is precisely why "morals" does not work as a proper starting point for a discussion of natural rights. "Natural rights" is supposed to be an objective absolute.

gabe: "It may also be advanced that *natural* right is simply a derivative outcome of custom, tradition, morals, etc., all of which are subject to change over time."

Then by definition, it is not a "natural right," as a "right" is something that cannot be taken away without your consent. When you enter into a society, you might wear a hajib, a bikini top, or simply go topless, but that is a matter of (sort-of) consent.

gabe: " To assert that SSM is derivatively a “first principle” is both haughty and specious – unless, of course, the LOCKEAN model is to hold sway"

You're not thinking it through. There is nothing that would prevent a society from enacting a law that outlaws SSM. llRC, some were floating the notion of an anti-SSM Amendment back in the '90s. But for good or ill, we are stuck with the COTUS we have, and a neutral application of its principles precipitates a right to enter into a SSM. lt is not about first or even second principles, but principles of law. As it is all about COTUS, you get to the same place--regardless of whether you start at Wilson or Locke.

lf the Framers intended otherwise, they should have drafted COTUS more carefully.

gabe: "Did one enter into a society that for generations considered its happiness to be threatened by SSM (as clearly this society did). How then can this be a first principle; how then can one change (in your terms) the contract?"

COTUS lS the contract. The right has been "there all along" (or at least, since 1868). You have a right to enter into contracts, and to engage in sexual acts with other consenting adults. Governments can only impair those rights and then, only under specified circumstances.

lf your formulation of the law had held sway, "society disapproves" would have been a winning argument. But ~100 courts respectfully disagreed with you, and l can't credibly argue that they were wrong.

gabe: "And yes, “rights” may not be derivative of duty; they, are however, a corollary of duty or OBLIGATIONS."

You keep saying this, but argument by assertion is not especially persuasive.

gabe: "COTUS holds no *immortal truths*,"

Of course, it doesn't. lt is a mere contract. Our job is one of interpretation only.

gabe: "The notion that our founders were pure Deists is at best debatable."

l don't know what a "pure Deist" is. A third of COTUS signatories were Freemasons, and others incorporated the "deist heresy" into their Christianity. As the example of Thomas Paine illustrates, coming out was not the best decision from a social perspective. History simply is.

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Miss Creant
on September 21, 2017 at 05:17:52 am

Mike: "One state by itself cannot alter the constitution and it remains the supreme law unless amended otherwise. That means one state cannot unilaterally leave."

From the NH Constitution:

Art. 3: "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void."

Art. 10: "Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."

The right to revolution is a natural right, which no government can lawfully abridge. Ergo, it was retained. Thereunder, the States necessarily reserve the right to 'walk'. You have effectively invalidated your own argument.

As far as Lincoln was concerned, he would have been perfectly happy to retain slavery as an institution in perpetuity as long as the Union was preserved (his writings document this). Remember that at least two slave states remained in the Union; the EP did not liberate slaves in those States. And yes, tariffs did matter. See e.g., http://www.emarotta.com/protective-tariffs-the-primary-cause-of-the-civil-war/ As a military man, you ought to know that all wars are over economics.

History simply is. Rarely is it pretty or noble. We need to accept it, warts and all.

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Miss Creant
on September 21, 2017 at 10:57:43 am

Let us be fair to Ole Abe. Yes, he did state that he would be happy to maintain slavery IF it meant he could preserve the Union. He also stated that he would be Happy to destroy slavery if it meant the union would be preserved.
Here we have another apparent *dueling* quotation - one that comes in the same breath.

But to accept the position that Miss - C takes is to deny the entirety of Lincoln's political / public speaking. Going back to the Temperance speech, Lincoln was quite steadfast in his opposition to slavery ("You work, I eat", recall please). HIS writings, rather than support slavery as you suggest, evidence a consistent and "fiery" outrage at the practice of human bondage.

Recall also that when Lincoln had the chance to accept the Crittenden compromise, he worked diligently behind the scenes to assure its' defeat.

One can cite Lincoln's positions on any and all matters re: slavery - the only conclusion is that Lincoln was steadfastly opposed to this barbaric practice.

As for the famous quote you cite:
Did not Lincoln make this a) in response to the Abolitionist Horace Greeley who was then placing great pressure upon Lincoln to *act*?

Here is the full text of the letter of which you cite, only a part.

Executive Mansion,
Washington, August 22, 1862.

Hon. Horace Greeley:
Dear Sir.

"I have just read yours of the 19th. addressed to myself through the New-York Tribune. If there be in it any statements, or assumptions of fact, which I may know to be erroneous, I do not, now and here, controvert them. If there be in it any inferences which I may believe to be falsely drawn, I do not now and here, argue against them. If there be perceptable in it an impatient and dictatorial tone, I waive it in deference to an old friend, whose heart I have always supposed to be right.

As to the policy I "seem to be pursuing" as you say, I have not meant to leave any one in doubt.

I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.

I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free."

Yours,
A. Lincoln.

AND HERE is a post letter (post War) assessment of the import and intent of the Letter by Horace Greeley:

Written during the heart of the Civil War, this is one of Abraham Lincoln's most famous letters. Greeley, editor of the influential New York Tribune, had just addressed an editorial to Lincoln called "The Prayer of Twenty Millions," making demands and implying that Lincoln's administration lacked direction and resolve.

President Lincoln wrote his reply WHEN A DRAFT OF THE EMANCIPATION PROCLAMATION ALREADY LAY IN HIS DESK DRAWER. His response revealed his concentration on preserving the Union. The letter, which received acclaim in the North, stands as a classic statement of Lincoln's constitutional responsibilities. A few years after the president's death, Greeley wrote an assessment of Lincoln. He stated that Lincoln did not actually respond to his editorial but used it instead as a platform to prepare the public for his "altered position" on emancipation.

Now Miss-C here is another quote from Lincoln that some may think applicable to your latest haughty and incorrect assertion about Lincoln:

"How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg DOESN'T make it a leg"

Your continued assertions about Lincoln, Law, etc may be nothing more than an attempt to pin an extra leg on a donkey. No chocolate cake for you at this kids party!!!!

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gabe
on September 21, 2017 at 11:24:34 am

Oops, forgot this but my Dawg (a chocolate Lab) reminded me as we were tossing a ball around:

For someone who is so fixated on THE LAW and COTUS as it is WRITTEN, how can you possible object to a President, Abraham Lincoln, restraining himself to the exercise of ONLY those powers granted to the Executive in COTUS. Clearly, Lincoln DID NOT have the power under COTUS to outlaw slavery. Lincoln was quite cognizant of this (see his commetary during the Campaign of 1860 and before) and made plain on a number of occasions that he would confine himself to exercise only those powers the Office was endowed with - even though he was personally convinced that slavery was morally (oops, there is that word again that you object to) abhorrent.
So why take lincoln to task for being a good constitutionalist?

As for the tariff as the cause of the WAR - that is perhaps the most willfully ignorant comment I have heard regarding how the "(And) The war Came." The tariff issue had been settled some 25 years earlier with the compromise over the Tariff of Abominations.

The War was not a fight over resources as you claim (other than *human* resources, i.e., slavery) but rather over the abominable practice of human bondage and an agrarian based political / economic system predicated upon slavery.

The only thing to be said re: resources and the Civil War that is factual and correct is this:

It was the SUPERIOR resources of the Union that prevailed over the backward, non-industrial Confederacy. So, I guess you got something right by simply mentioning resources. All in all - a grade of D-!!!!

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gabe
on September 21, 2017 at 13:11:46 pm

COTUS is the supreme law of the land. Any state has ratified this, meaning that any law or state constitution that conflicts with federal ideas is null and void. What the NH state constitution says is irrelevant if Constitutional federal law contradicts it.

The right to revolution is not absolute. Otherwise any traitor and turncoat could plead that. In the minds of the Founders the only reason they felt they had the right to rebel against England is that they had no other method to address their grievances. They had no representation in parliament, royal governors were nullifying local congresses, British troops were acting as hostile occupying forces, the rest. They had run out of choices. From that experience they formed a government that is essentially perpetual revolution. Elections every two years, courts, checks and balances mean that there are always steps short of military revolution to address grievances. If we cancelled an election or disbanded the courts, then perhaps we would have a valid and moral argument for bloody combat, but short of that scenario is treason. The confederacy was treason.

Lincoln and the Republican Party stood for not allowing slavery in new territories and halting the practice of new states coming in pairs to balance the senate, one slave and one free.

Secession documents: every single seceding state referenced slavery as the primary grievance causing secession. While some slave states remained in the union, that is irrelevant to those that tried to secede except to show that some people thought remaining in the union was the better decision. All seceding states stated a fair and valid presidential election as a primary or secondary reason. Neither of those stated reasons rise to justify rebellion. They left after a fair election and over a dispute being addressed through constitutional routes. They were traitors.

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Mikehorn
on September 21, 2017 at 21:21:54 pm

Miss Creant, time and space don't permit me to address all of the points you brought up in your previous post, but I'll try to address what seems most important:

You bring up deism. I have no argument with the thought that Locke opened the door to deism, but I see no reason to believe that deism was popular among the American founders. James Madison, in particular, explicitly preferred “the idea of a self-existing cause… possessing infinite power, wisdom & goodness.” (Madison 1910, 9:230) This of course was good legal doctrine at the time, in addition to being orthodox theology for Unitarians (such as Adams) as well as Christians. James Madison, as you doubtless know, spent a year of post-graduate study under the tutelage of Rev. John Witherspoon. The very first book on Witherspoon's reading list for Madison was G.W. Leibniz's "Theodicy," in which he wrestles with the problem of evil in a world created by an omnipotent, omniscient and benevolent God.

The argument that some of the more prominent founders were deists is based on a two-fold division of religious thought in the 18th-century colonies between Christianity versus deism. Jefferson, with a self-serving political motivation (trying to deflect political attacks on him as a deist), resorted to this two-fold division when he incorrectly identified Jews as deists.

I think it is better to use a three-fold division of Christian, theist, and deist. Jews are theists, not deists, in that they (together with George Washington) believe in a God who affects human affairs through divine providence, as opposed to the deistic indifferent God who doesn't concern Himself with human affairs. To use another example, Shaftesbury, a well-known ("notorious") free-thinker in the early 18th century, pronounced himself a theist, not a deist. Gregg Frazer's book, "The Religious Beliefs of America's Founders: Reason, Revelation, and Revolution," uses the phrase "theistic rationalism" (as opposed to deism) to describe the unorthodox beliefs of founders such as Franklin, Washington, Adams, Jefferson and Madison.

To rebut your assumption that nobody seems to find Hutcheson or Burlamaqui to be particularly influential, Norman Fiering (1981, p. 199) referred to Hutcheson as “probably the most influential and respected moral philosopher in America in the eighteenth century.” And Ray Forrest Harvey's book on Burlamaqui devoted an entire chapter (4) to documenting how widespread Burlamaqui was in libraries of the time. Burlamaqui's work was republished over and over in the USA throughout the 19th century. Both Hutcheson and Burlamaqui were identified as "approved writers" in the 1761 Massachusetts Election Sermon, which also employed their shared Ciceronian phrase "safety and happiness" for the purpose of government -- a phrase that was defined by John Adams in the May 1776 independence resolution,, which is essential context (as alluded by Chief Justice John Marshall in "Marbury v. Madison") for the Constitution. In this spirit James Madison, in Federalist #43, invoked “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

This brings me to your example of two men marrying each other because they think it will make them happy. The issue here is the definition of happiness. If you are indeed an originalist as you say, then presumably you will be inclined, for the purpose of discussing both the context of the U.S. Constitution and that body of case law that wrestles with the meaning of the word "happiness," to accept the May 1776 anti-Lockean Congressional definition of happiness as "internal peace, virtue and good order." This definition is rooted in Cicero, Cumberland and Burlamaqui, as I discussed in a recently-published article here: http://startingpointsjournal.com/may-resolution-declaration-of-independence/

In a nutshell, "internal peace" equates with not being afraid of dying and having a clean conscience; virtue refers to the four cardinal virtues (justice, wisdom, courage and temperance), and good order refers to being free from the "four disorders of the soul": distress, fear, ecstasy and lust. (See, for starters, Cicero's "Tusculan Disputations," from which the young scholar Thomas Jefferson copied a description of the happy man.)

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John Schmeeckle
on September 22, 2017 at 08:18:27 am

l don't pretend to be a Civil War buff, but l can't think of a single war that was ever fought for strictly altruistic reasons. Even our entry into WWl was all about the money. https://ratical.org/ratville/CAH/warisaracket.html

You have offered nothing to refute the assertion that economics in general (and high tariffs, in particular) was a highly significant factor in the motivation to secede. Slavery made a useful pretext, but it was all about preserving the Union. The South was a cash cow for the North, and secession would hurt the North FAR worse than the South.

The cold hand of economics would have interred slavery within 20 years.

The Crittenden-Johnson Resolution did not even mention slavery, and the Horace Greeley letter is far from dispositive. Representative Lincoln statements follow:

“The War is waged by the government of the United States not in the spirit of conquest or subjugation, nor for the purpose of overthrowing or interfering with the rights or institutions of the states, but to defend and protect the Union.” [Mar. 1861]

“My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery.”

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

ln the 1858 debates with Sen. Douglas, Lincoln maintained, “And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race ... [and] “I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races.”” [1858]

The Beecher family stoked great passion in the common man, but the common man does not decide that wars shall be fought. The War was about preserving the Union, plain and simple.

History appears to have vindicated the decision, even if Lincoln's actions were at times legally sketchy.

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Miss Creant
on September 22, 2017 at 09:06:36 am

M: "What the NH state constitution says is irrelevant if Constitutional federal law contradicts it."

And what COTUS says is irrelevant if natural law contradicts it. The right to revolution is not something a government can lawfully take away.

M: "In the minds of the Founders the only reason they felt they had the right to rebel against England is that they had no other method to address their grievances."

COTUS is a mere contract. Technically, a treaty. ln case of fundamental breach (English law terms used here, as they are used in international law), those who are otherwise bound by it no longer have a legal or moral duty to honor their obligations thereunder. As a minority faction, the South reached that determination. History is re-written by the winners, and Jefferson Davis would have been as revered as Thomas Jefferson, had secession been successful.

M: "They had no representation in parliament, royal governors were nullifying local congresses, British troops were acting as hostile occupying forces, the rest."

You sound like a trained officer; l'm sure you studied the governance of Athens by the Thirty Tyrants. There are patterns to force. The people push back; the rulers push back harder.

Remember that even in the American Revolution, only a relative handful were committed to waging armed resistance.

M: "From that experience they formed a government that is essentially perpetual revolution. Elections every two years, courts, checks and balances mean that there are always steps short of military revolution to address grievances."

But as Madison acknowledged, the Achilles heel of the system was the problem of faction. The South was a minority faction, which had no meaningful voice in their government. Judges have always been, more or less, reliable proxies for the Parties. See e.g., the Midnight Judges' Bill. Look at the grotesque way in which the Republicans are governing, and you get it.

M: "Secession documents: every single seceding state referenced slavery as the primary grievance causing secession."

While slavery was certainly the flash-point, the South made the same argument the Colonies made almost a century beforehand:

"Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.

In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States.

The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were-- separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that 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. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences."

Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union [1861]

l'm not going to try to defend the "why." My point is strictly one of law: a fundamental breach voids a contract, and the South asserted a fundamental breach. (COTUS did not provide for an orderly divorce, which is the bane of all partnership agreements. ) Did they have a colorable legal right to leave? Yes.

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Miss Creant
on September 22, 2017 at 10:26:12 am

Reading your article, l can see that this discussion intersects with your passion. That always elevates the discussion.

John: "I see no reason to believe that deism was popular among the American founders. James Madison, in particular, explicitly preferred “the idea of a self-existing cause… possessing infinite power, wisdom & goodness.”

And it is my understanding that that was the soul of 18th-century deism. No malicious and capricious tribal sky-daddies, micromanaging the Universe. A clockwork universe, and a just (the Hebrew mishpat) God. That WAS the "deistic heresy," which was embraced widely.

John: "James Madison, as you doubtless know, spent a year of post-graduate study under the tutelage of Rev. John Witherspoon. The very first book on Witherspoon’s reading list for Madison was G.W. Leibniz’s “Theodicy,” in which he wrestles with the problem of evil in a world created by an omnipotent, omniscient and benevolent God."

l've had this discussion with a man who tried to assert that Rev. W had an outsized influence on Madison (it is generally conceded that Jefferson was his primary mentor). But the main problem with Leibniz is that he fails to account for the effect of divine intervention. The god who chooses our leaders for us, Rom 13:1-7, and has predestined who would and who would not be "saved," Rom. 8:28, et seq., is the proximate cause of said "evil" (most of the Framers were Calvinists), and cannot be absolved.

"For Scripture says to Pharaoh: “I raised you up for this very purpose, that I might display my power in you and that my name might be proclaimed in all the earth.” Therefore God has mercy on whom he wants to have mercy, and he hardens whom he wants to harden." Rom. 9:17-18. For your god to favor Pharoah is necessarily to disfavor others. For an omniscient god to support his fair-haired boy Adolf for Reichchancellor is to oppose Heinrich Schwartz's candidacy. As an omniscient god cannot not know what he would do with that power, he cannot evade responsibility for Adolf's actions. lt is like firing a machine-gun into a crowd, and blaming the bullets for the resulting carnage.

Bottom line YOUR GOD _lS_ EVlL. Leibniz never solved that problem ... and neither has any other Christian philosopher who has followed him. The deistic heresy escapes that philosophical box.

John: "Jefferson, with a self-serving political motivation (trying to deflect political attacks on him as a deist), resorted to this two-fold division when he incorrectly identified Jews as deists."

Judaism is deism with ritual. Jefferson is usually right, and this observation is not an exception.

John: "Norman Fiering (1981, p. 199) referred to Hutcheson as “probably the most influential and respected moral philosopher in America in the eighteenth century.”

For every scholar with an opinion, there are seven with opposite opinions. :) Everyone quoted Montesquieu, Locke, and Blackstone. No one quotes Hutcheson. "And E.F. Hutton says...." On that score, the troika you are relying on had no significant impact.

John: "This brings me to your example of two men marrying each other because they think it will make them happy. The issue here is the definition of happiness."

lt is a liberty interest. But if you want to go down that rabbit-hole, feel free: http://www.chron.com/life/books/article/An-historical-look-at-the-pursuit-of-happiness-1575897.php One can certainly make the argument that ANY marriage contributes to “internal peace, virtue and good order”; the standards are so ethereal that we can reach any conclusion we care to.

John: "and that body of case law that wrestles with the meaning of the word “happiness,”

....which, to the best of my knowledge, is a null set. Whereas Jefferson uses the term “pursuit of happiness,” Locke used the term “property”. One can credibly contend that these two terms meant the same thing, as for Enlightenment thinkers, private property was the basis of one’s personal security and thus, one’s happiness. See e.g., Garry Wills, lnventing America at 240-55. But as 'liberty' covers the waterfront, l don't need to dive too deeply into the Dol phrase.

My reading of Jefferson's Dol phrase is that liberty is the means and happiness, the goal.

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Miss Creant
on September 22, 2017 at 11:24:01 am

gabe: "Actually, I did not approve of either timmy Tebow’s antics or his play! – Ha!"

Q: How do you know that God is a Broncos fan?
A: Tebow's with the Jets. :)

gabe: "I AM PAYING you) CONCENTRATE upon the task for which you are being (rather handsomely) paid."

Which is beside the point. During the Anthem, even the beer girl in Section 116 was safe from Tebow. :)

gabe: "If a star defensive back wants to rant about the Flag, BLM, etc while on a TV show, rubber-chicken circuit, or just shooting the breeze with the boys – GO RIGHT AHEAD. should the Boss object – too bad."

John Rocker. The Charlottesville protestors. This is every bit as perilous as empowering the government to do it. China requires lawyers to swear fealty to the government; that Apple can do the same chills speech as surely. lt is legal ... but is it desirable?

gabe: "and how could I forget ESPN (otherwise known as Every Sportswriter Political Now)"

Calling Trump a White supremacist is a little like calling the Pope Catholic. Why doesn't the lady (l don't even know her name) have the right to tweet her opinion? She's doing it on her own time.

gabe: "A middle school teacher instructed her class to cease talking to the child of an Member of Parliament – BECAUSE the MP was conservative."

That lS grotesque. But conservatives do the same thing. l see it as a dangerous societal precedent.

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Miss Creant
on September 22, 2017 at 12:44:01 pm

MissC:

You are being too *clever* by half.

"The Crittendedn compromise did not mention slavery"

Yeah, well neither did COTUS - wordsmithery avoided the use of the term and instead we had "importation of persons...."

FYI, this is what the Crittenden Plan would have accomplished:

"The compromise would have guaranteed the permanent existence of slavery in the slave states by reestablishing the free-slave demarcation line drawn by the 1820 Missouri Compromise."

Now if that ain't about slavery what was.

BTW: I make no claim that the War was solely about slavery but only counter your claim that Lincoln was not intent on ending slavery - his whole public career cried out against slavery.

Yes, there were economic issues involved - there always are; if one was creative enough, one can claim that even the jihadists, of late seen blowing up a London train station, are motivated by economics.

As for your unwillingness to accept the fact that Lincoln HAD to act within the *LIMITS* prescribed by COTUS, as well as not alienating the Border Slave States and the moderate Republicans, I am "Shocked, I tell you, Shocked" to find that constitutional limitations were in play with Lincoln. (Where is Bogey when we need him)? How is that one such as yourself who is insistent that we accept the COTUS we have, strenuously objects when an Executive, such as Ole Abe, ACTUALLY recognizes those limits and attempts to confine his actions within those limits. C'mon, MissC!

As for the Declaration of Rights, clearly this was wordsmithery designed to cover the true reason for secession. Sort of like, the wordsmithery used to institute O-Care - "better health care / service / cheaper / keep your doctor, etc" - when in fact what was behind it was an attempt to take over an entire sector of the economy - Yeah, it wasn't about government takeopver at all! _ right!

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gabe
on September 22, 2017 at 14:51:12 pm

What l said: "The Crittenden-Johnson Resolution did not even mention slavery, and the Horace Greeley letter is far from dispositive."

What you thought l said: "“The Crittendedn compromise did not mention slavery”

Two VERY different things, gabe. The C-J Res declared war. And yes, l do know what the other proposal was about. We actually studied the Civil War in H.S.

lt is my understanding that Lincoln was not a Radical Republican. There were some in the Party who were the functional equivalent of the Tea Party, and he was regarded as one of the "adults in the room."

gabe: BTW: "I make no claim that the War was solely about slavery but only counter your claim that Lincoln was not intent on ending slavery – his whole public career cried out against slavery."

"Spotty" Lincoln? He was an admirer of Henry Clay (who owned slaves), and more about himself than others. His attraction to Whiggery appears to have had little to do with slavery, and more about development of the West; he found slavery as an issue sometime later. His admiration for Clay was about his ability to cut deals, per Smithsonian Magazine:

"Clay’s ability to promote compromise in the most complex issues of the day made him a highly effective politician. Abraham Lincoln said Clay was “the man for a crisis,” adding later that he was “my beau ideal of a statesman, the man for whom I fought all my humble life.”

Yet there was one crisis in Henry Clay’s life in which the Great Pacificator showed no desire to compromise. The incident occurred in Washington, D.C., when he was serving as secretary of state to President John Quincy Adams. In 1829, Charlotte Dupuy, Clay’s longtime slave, filed a petition with the U.S. Circuit Court against him, claiming she was free. The suit “shocked and angered” Clay, and whatever sympathies he held with regard to human rights did not extinguish his passion for the rule of law. When confronted with what he considered a “groundless writ” that might result in the loss of his rightful property, Henry Clay showed little mercy in fighting the suit."

He was, for most of his life, more of a politician than a statesman. But the unique burdens of a Presidency in a time of crisis remade the man. His son's Willie's death in the darkest days of the War drove him to the depths of depression. His altruism was, imho, the product of that burden. l respectfully disagree for these reasons.

gabe: "As for your unwillingness to accept the fact that Lincoln HAD to act within the *LIMITS* prescribed by COTUS, as well as not alienating the Border Slave States and the moderate Republicans, I am “Shocked, I tell you, Shocked” to find that constitutional limitations were in play with Lincoln."

You could collapse the market with that much straw, gabe. Lincoln ordered newspapers closed, confiscated weapons, and arrested Rep. Clement Vallandigham for opposing the War. He did some sketchy stuff, and to admit that fact shouldn't be all that controversial. One can argue necessity here, but that only applies if you contend that the South had no right to secede. l think a case could be made then, and for California today.

WRT the EP, it was not a legal document, but a political one. Lincoln had no legal authority over slavery in the Union states, and no practical authority over the South in general.

gabe: "As for the Declaration of Rights, clearly this was wordsmithery designed to cover the true reason for secession."

Translated, you need this fact, and will take it by hook or crook. :) History is just WAY more complicated than that.

gabe: "Sort of like, the wordsmithery used to institute O-Care – “better health care / service / cheaper / keep your doctor, etc” – when in fact what was behind it was an attempt to take over an entire sector of the economy – Yeah, it wasn’t about government takeopver at all!"

As a practical matter, our for-profit health care system was spectacularly inefficient, compromising both our international competitiveness and public health. Watch this 60 Minutes piece, https://vimeo.com/753559, and tell me how frackin' GREAT the status quo ante was.

Your Utopia was unsustainable.

We had to do something. Whereas the intelligent capitalist would simply steal his competitors' best ideas--here, government-run medicine--people like you "HATES Socialism! We hates it forever! Gollum! Gollum!!!" And Congress is 'owned' by Big Pharma and the parasitic insurance companies. HeritageFoundationCare--one of your side's worst ideas ever--was the result. Does it work? No. But why do you want Big lnsurance to sell crap policies? And why do you want to tell babies with heart defects to hurry up and die?

Most regulations exist because Something Bad Happened, and as a society, we want to ensure that it doesn't happen again. The mandates were born of the need to keep Big lnsurance from doing what they do best: sell coverage and deny liability.

We've let the free market work. lt doesn't. But as long as people like you live in a fact-free world, we will be forced to relive those mistakes. lt's about fixing what we can no longer afford to leave broken.

lf you called it TrumpCare, he'd sign off on single-payer.

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Miss Creant
on September 22, 2017 at 17:48:47 pm

Regarding the cause of slavery, it was a widespread view in the antebellum South that, in order to survive as an institution, slavery must expand into new territories. For this reason the Civil War came close to starting ten years early, in 1850. Radical Southern "Fire-eaters" called for re-opening the African slave trade and for secession if southern California (newly conquered from Mexico) wasn't made a slave territory. President Zachary Taylor was threatening to personally lead troops into Texas to prevent its ongoing "annexation" of federal territory along the Rio Grande (the Texans got as far as El Paso), when he suddenly dropped dead, defusing the crisis and allowing for the make-shift Compromise of 1850, which helped patch things up until it all fell apart with Lincoln's election. Southern leaders knew that Lincoln could use federal patronage to set up a Republican party organization in lightly-enslaved Kentucky, pushing slave territory further south and setting the "peculiar institution" on a course of ultimate extinction. So they chose to stand and fight rather than get weaker and weaker versus the rapidly industrializing northern states, where the population was growing much faster than in the south.

And please remember that slavery as an institution was fundamentally economic -- slaves were a LABOR FORCE that enabled profitable large-scale agricultural enterprises. And of course the little guys needed at least a slave or two, if they wanted a chance to win a local election. I like Freehling's "The Road to Disunion" (especially vol. 1), for a readable description of slavery and the issues leading up to the Civil War.

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John Schmeeckle
on September 22, 2017 at 18:04:11 pm

Miscreant wrote that case law regarding "happiness," to the best of his knowledge, is "a null set." There has been an abundance of cases, at both the state and federal level, where discussion of "happiness" played a part in judicial decisions.

For the much smaller set of cases that has reached the Supreme Court, see http://blogs.cuit.columbia.edu/culr/2016/02/16/constitutional-considerations-of-happiness/

Miscreant writes: "Whereas Jefferson uses the term “pursuit of happiness,” Locke used the term “property”. One can credibly contend that these two terms meant the same thing, as for Enlightenment thinkers, private property was the basis of one’s personal security and thus, one’s happiness."

Security of property as a necessary (but not in itself sufficient) prerequisite for happiness was a Hutchesonian view published by John Dickinson twice in the 1760s, following Cicero's (and Hutcheson's and Burlamaqui's and Vattel's but NOT Locke's) enunciation of the "safety and happiness" of the people as the purpose of government.

The phrase "safety and happiness" (with various synomyms such as "security" and "felicity") was employed repeatedly during the revolutionary era as a catchphrase for what the Americans stood for. And then in May 1776 Congress defined SAFETY (not happiness) as "defence of lives, liberties and properties" while defining happiness as "internal peace, virtue and good order." For the founders, property pertains to safety, but happiness is something different -- the byproduct of "perfection" or habitual virtue, with benevolence foremost among the virtues.

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John Schmeeckle
on September 22, 2017 at 19:53:05 pm

MissC:

You ARE a master of "wordsmithery" - I'll grant you that. Asubtle inference here - a subtle jab there - and before you know Lincoln was a slaveholder. Well , he must be pro-slavery, right? After all, he was an admirer of Clay who owned slaves - so, therefore...
Yeah, right!

Crittenden WAS about slavery - it WAS an attempt to forestall the War by reinstating the Missouri compromise and permitting slavery to expand westward. IT HAD TO EXPAND or it would have faced extinction.

So yes, there was an economic component to it BUT for "four score and [almost] seven years" the competing economic systems of the North and South did not come to arms.
What, one asks, then, was the casus belli? What new element was added to the mix? Goodness gracious, if the South did not take up arms over the Tariff of Abominations, which clearly would have devastated it, why take up arms now?

No, the south well understood the power of the central government, to use means / methods to hurry the extinction of slavery. They knew this for decades - and did nothing. But know the popular will, or at least prominent opinion and expression was FOCUSED on terminating slavery. The south now not only understood the capabilities of the central government but NOW had reason to fear that the central government would begin to exercise those options.

Stop putting lipstick on a pig, MissC; like the south, she will still roll around in the muck of slavery if not prevented - and that is precisely what the south feared.

And yes, Lincoln did use some extra constitutional measures. Hey, it WAS wartime. BTW: One thing people often neglect to mention with Lincoln's suspension of habeus corpus is this: Being the good constitutionalist, as soon as Congress was back in session, he asked for and received Congressional approval. Hey isn't that what COTUS says?

As for your rant on Healthcare - a) I would use some source other than 60 Minutes (yep, the same 60 minutes caught doctoring test vehicles, etc). Try asking real live people who have seen the *benefits* of O-care. another $5,000 per year for me and mine; limited options, etc; whereas, prior to the "improved" program, life, and our health INSURANCE (BECAUSE THAT IS WHAT it IS, INSURANCE NOT CARE) WAS JUST FINE AND MET ALL OF OUR NEEDS. (Oops - left caps on - so what)

As for the free market having been giving a chance to work, BOGUS. the government, in particular STATE governments got their dirty little fingers into it and mandated all manner of coverages, requirements, paperwork, etc.

It was not perfect - then again, what each of us respectively thinks is perfect is quite different. You, I imagine would prefer *free* care for all - except that I end up paying for your poor genes, lifestyle and consumption choices.

I ain't buying your sob stories.

AND ONCE AGAIN - I am NO utopian - indeed I find most of them to be reprehensible, arrogant, self righteous know-it-alls. How about you? You seem to be "The [wo]man with a plan"

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gabe
on September 22, 2017 at 23:47:37 pm

gabe: "Well , [Lincoln] must be pro-slavery, right?"

l'm not going to let you make Lincoln into a saint or avenging angel. He appears to have come to the issue late in his career and apparently, still working out his position in the early 1850s. http://www.npr.org/2011/02/21/133372512/tracing-president-lincolns-thoughts-on-slavery You can't find a useful quotation from him before 1854, though he was in Congress during the Mexican-American War--where he earned the nickname, "Spotty" Lincoln. Like many other ambitious and opportunistic politicians, he rode an issue to prominence.

gabe: "No, the south well understood the power of the central government, to use means / methods to hurry the extinction of slavery. They knew this for decades – and did nothing. ... What, one asks, then, was the casus belli? What new element was added to the mix?"

Do the math. ln 1848, there were 29 states, of which 15 permitted slavery. The "no" votes of 15 states were enough to kill the ERA. When three non-slave states were added to the Union, they lost the veto they had in the Senate. As such, slavery would have died a death of a thousand cuts. Their economy was built on slavery, and the transition would have caused considerable economic pain.

As for the war itself, everything turns on the question of whether states have a right to secede. lf the answer is yes, then Lincoln was in the wrong, and l think a credible argument can be made that they do. Should they have done so here? Over this? We retch in unison at the thought, but the law doesn't care.

As for the flashpoint, Lincoln provoked the War. South Carolina even tried to buy Fort Sumter. But Lincoln was not about to let them leave the Union--what he cared about above all else. As l read it, that is what the Civil War was all about--the "but for" cause. And if Lincoln's own words won't persuade you, nothing l could say can.

gabe: "As for your rant on Healthcare – a) I would use some source other than 60 Minutes"

"lf Bret Baier doesn't say it, l don't believe it, and that settles it"? Will you accept the lndependent (UK)? "The British-born Amazonian cowboy gave it all up to devote his life to providing free healthcare for millions of uninsured Americans. Simon Usborne hears his extraordinary story" The Bristol (TN) Herald Courier? "RAM founder Stan Brock: "Some states should be ashamed" Go on FB, and look up "Medicine Man: The Stan Brock Story." [They seem to allow me one URL, maximum.]

lt's not like l couldn't use 100 other supporting citations. But as you'll never see it on Hannity, it is easy to see why you are still ignorant concerning it.

gabe: " Try asking real live people who have seen the *benefits* of O-care. another $5,000 per year for me and mine; limited options, etc;"

"8 People Who Owe Their Lives to Obamacare." "How Obamacare saved my life" "Lifelong Republican to Speaker Ryan: Obamacare saved my life" "My insurance provider paid people to work hard to deny me life-saving chemotherapy because they thought I had a preexisting condition." "The Affordable Care Act — aka "Obamacare" — saved my life. Yes, this is for real. It happened last year. If not for the ACA, I would either be dead and buried or in so much medical debt I would never get out from under it." "It was not a miracle that saved my life. It was the Affordable Care Act." Et al., ad nauseum.

My guess is that you live in a state that didn't try to implement it.

gabe: "As for the free market having been giving a chance to work, BOGUS. the government, in particular STATE governments got their dirty little fingers into it..."

And now, you want them to have their dirty little fingers controlling it? Come again? That's Graham-Cassidy.

gabe: "I imagine would prefer *free* care for all – except that I end up paying for your poor genes, lifestyle and consumption choices."

How many marathons have YOU run? Are you Paleo? Even organic?

lf you can get everyone to agree to mandatory abortion of Down fetii, we can save a lot of money. Ditto, the euthanization of advanced-stage Alzheimer patients. l'd rather check out than check into a nursing home, so why don't you let me have that choice? Don't whine about costs until you are ready to make the hard calls.

Nothing is free. But in our system, Pfizer can charge $5 a pill for Viagra in Mexico, and nearly $50 here. And insurance companies can spend 30-40% of your premiums in efforts to deny the care you paid for. (Medicare admin costs are 2%.) Single-payer can get the fat out of the system.

Case in point. l get allergy shots. After insurance, they cost $2.50, a little over once a month. They have to bill my insurance company and then, they have to bill me. lt literally costs them more to send me a bill than they collect from me! ls that any way to run a railroad???

ln a medical practice, receivables is usually the largest asset; you have to bill, collect, and finance them while you do. ln Australia, you plunk down your Medicare card, and all bills are settled at the end of the day. Think of it! NO receivables! You've just cut out 30% of the doc's overhead.

The empirical evidence is overwhelming. Single-payer would save us a trainload. lt is just that unlike you, l am a good capitalist, who believes in stealing the other guy's best ideas. You have an irrational religious belief in the Market Fairy, and don't seem to understand the rudiments of economics.

Unlike you, l know how to "do the math."

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Miss Creant
on September 23, 2017 at 05:44:20 am

[…] J. Haun, a lawyer based in Washington, D.C., has penned an important essay at the Library of Law and Liberty blog that delves into these details. In the piece, he traces the […]

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What Did the Founders Think about Freedom of Speech? By Mike Sabo | RUTHFULLY YOURS
on September 23, 2017 at 08:37:03 am

You misunderstand how history works. It is not my job to disprove tariffs are the cause. It is your job to prove it. I have claimed the Civil War was over slavery. I have offered as evidence each and every secession document written by each and every seceding state which all, each and every one, put slavery as the number one reason for secession. Some mention nothing else. At least one state, Texas, impeached and removed from office their governor, the famous Sam Houston, because he thought seceding over anything was dumb, and seceding over slavery was both dumb and immoral. Sam Houston of Texas was a Union man till he died. Since my view matches what historians who are experts on the Civil War say, I'd lay a lot more credence in my view. Since the primary evidence is the words and thoughts expressed by the seceding states themselves, there should be exactly zero question on this issue. Some historical moments are muddy and unclear. This one is not. One of the most clear historical moments in American History is that states seceded and fought a war over slavery. Under the Article III definition
of treason, this is a perfect example of what the Founders considered treason, to include all Southern Convention delegates and each and every State that ratified the Constitution. This includes South Carolina and all other confederate states. The confederates were traitors.

As it happens, it appears that you are correct that you know almost nothing about the civil war and its causes. It is also true that I know far more than you, since what you've said so far is hopelessly wrong. Worse, we have documented evidence that the Tariff idea was instigated by unreformed traitors, Klansmen, and similar folks after the war when they started the Lost Cause rationalizations that attempted to paint the South not as treasonous, immoral slavers but as somehow noble freedom fighters. It's sick. It's pernicious. It still shows up today. In 1980 Ronald Reagan gave a campaign speech in Mississippi that referenced it in cynical dog-whistle language, consciously chosen by Lee Atwater. It appeared in Forbes Magazine as recently as 2013, before the magazine retracted it because, shocker, historians said how incredibly, dangerously wrong they were. Nothing like publishing an article justifying treason and slavery and then having every historian in the nation tell you about it, publicly. For example, the Mississippi secession document, written in January 1861 by a seceding Congressman that was not present when the Morrill Tariff was passed 3 months after secession:

"Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin." (Mississippi Ordinance of Secession, January 1861)

But, as it happens, I can also disprove the tariff myth. The Nullification Crisis a few decades earlier involved tariffs and states rights and places like South Carolina almost tried to secede then. They didn't, and the Nullification Crisis settled the offending tariffs through Constitutional means like I've laid out before: John C Calhoun, the vice president, resigned and ran for Senate from South Carolina, and (peaceful) negotiations in Congress passed compromise tariffs that satisfied all interests. This is how america is supposed to work, where we have a forum where elected representatives from everywhere can meet and iron out differences by means short of rebellion and bloodshed. This crisis never satisfied the debate on States Rights that were brought up, though the weight of Founders documents and the plain language of the Constitution makes those types of strong States Rights arguments very weak. Under the Articles of Confederation the USA was very much a confederacy of independent sovereign nations, much like the European Union today. We had issues with lack of a central authority, defense, security, and method to work out differences. Which is why people like Madison decided that a new Constitution with a strong federal government that says in plain English that federal law trumps state law every time.

The kernel of truth the lies and deceit are built around is the Morrill Tariff proposed in 1860 but not ratified until well into 1861 after some seceding states had withdrawn their senators. If those senators had been around to vote, the tariff would not have passed. This gave an Ex Post Facto fallacious cover to confederates. Since exactly no secession documents use the tariff argument, this is on its face immediately false as a cause. Southern diplomats in England started using this to try to get an ally (from the British Empire that had already outlawed slavery, so that wouldn't be a good avenue to use, so tariffs). Union diplomats took about 2 years to debunk this myth, and England never recognized the South. But this was all external and was not part of any debate in America before or during the civil war.

In America the Lost Cause folks tried to find everything to make up for the feelings of loss, failure, criminality, treason, crimes of slavery, and the bone crushing defeat of the first industrial Total War (the prototype conflict in terms of tactics, weapons, and logistics, for WWI and WWII). This started taking hold as early as 1866, but it really got going in the 1870s and was entrenched myth by 1900. All of this is after the war. It is in plain fact, dating, and words Ex Post Facto rationalization. We have the history of where the myth started, its merits and failings, and all of the overwhelming weight of evidence saying it is flatly wrong.

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Mikehorn
on September 23, 2017 at 09:29:10 am

As l suspected, "happiness" is a hortatory term, with no legal import whatsoever. lt is, as observed earlier, susceptible to an array of meanings; the law does not choose one over another. lf the earliest case you can find (Meyer v. NE) is 150 years removed, you have nothing of value that helps us to assign a meaning.

John: "There has been an abundance of cases, at both the state and federal level, where discussion of “happiness” played a part in judicial decisions."

Meyer (1923). Loving v. VA (1967). Obergefell. Let's do the math.

This is the extent of the discussion in Meyer: "[A]nd generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399 (1923). lf you can parse a discrete meaning out of that "discussion," you are a better man than l.

The term is used in Marbury v. Madison, and in some 30 cases between 1800-1850 ... but not one even tries to ascribe a legally relevant meaning to it. You might as well be looking to Pharell Williams for a definition.

lt is far better, as l have suggested, to see "happiness" as the aim; liberty as the means, and the definition of "happiness" as being left to the person involved. Meyer will support that analysis.

John: "in May 1776 Congress defined SAFETY (not happiness) as “defence of lives, liberties and properties” while defining happiness as “internal peace, virtue and good order.”"

No, they actually used the phrase, “internal peace, virtue and good order.” Continental Congress, Resolution to Establish Governments Free of British Authority (U.S., May 15, 1776). These are societal aims, as opposed to personal ones.

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Miss Creant
on September 23, 2017 at 16:46:29 pm

John, the question is one of what caused the CW. You don't have a war if Lincoln doesn't provoke one.

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Miss Creant
on September 23, 2017 at 17:13:32 pm

Lincoln provoked nothing. The southern states didn't like lincoln, like many tea partiers didn't like Obama and the most on the left don't like Trump. But in america we have elections and sometimes the person you like doesn't win. That means you get ready for the next election, and try to do what you legally can before that - congress, courts, peaceful assembly, newspapers.

No election or issue justifies armed treason as long as elections happen and all three branches stand. Some pushed Lincoln to suspend elections in 1864. He did not because he knew that would not help save the Union but rather do a lot of damage on its own. That we held a presidential election in the midst of a civil war does america, at least the Union part of it, a great deal of credit.

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Mikehorn
on September 24, 2017 at 10:20:02 am

How is it "treason"? All the South did was file for divorce. Lincoln forced her to evict him.

Lose the fixation on slavery for a minute, and let's look at the rights involved. Consider it in the context of the movement for California's secession--which is a real thing, btw!--from the perspective of Californians. FWlW, l'm not a Californian; l'm just making the case.

The right to self-determination is recited in the Dol: "Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Let's do the math. The rest of the country elected a mentally-ill man-child, who seems intent on provoking war with NoKo--and whose counterpart has vowed to nuke L.A. (lf you're not America you're not a target.) That qualifies as a clear and present danger to Californians' safety.

Most countries either elect their President by majority vote, or can remove governments in short order via no confidence votes. Trump has declared open war on the environment and public education, which qualify as existential threats--California's bread-basket is under direct and grave threat. We don't have an effective mechanism for undoing unwise choices, which is another compelling reason to throw off this government.

Californians have an inequitably diminished voice in their own self-governance. The Wyoming sheep-rapist (where men are men, and the sheep fear it!) has almost 100x as much of a voice in the Senate as they do, and this has obvious consequences. Neil Gorsuch, as opposed to Merrick Garland. And despite 3M more people casting votes for the other girl--who wasn't much of a bargain--we are stuck with the Great Gasbag. And the troika of voter suppression, natural gerrymandering, and the more overt kind have severely muted the voice of the people. What that means as a practical matter is that Californians have been forced to support the welfare queens in Alabama, Nebraska, and South Carolina, to the point where their own financial stability is imperiled.

And then, there is the rise of oligarchy. The oligarchs have plotted to disembowel the social safety net for 40 years (see Jude Wanniski), and Paul Ryan, Bill Cassidy, and Mitch McConnell are scheming to murder Granny in the process. The vast majority of the people of the world agree that decent health care is a right, but the troglodytes in the Cult of the Market Fairy BEE-LEEEEEVE--in spite of the evidence--that free markets will solve everything, despite the overwhelming weight of empirical evidence. The oligarchs and their agents in Congress pose a clear and present danger to the health and safety of Californians. Another good reason for them to leave.

And then, there is the system of legalized bribery that perpetuates this corrupt system. Cory Gardner and Ben Sasse are painful examples of the cookie-cutter automatons who listen only to the patrons who write the checks. Everyone in America should listen to this: https://www.youtube.com/watch?v=Ylomy1Aw9Hk (John Oliver interviews a ConMan, who explains the "dialing for dollars" system from personal experience.)

And then, there is the surveillance state, the endless elective wars (often f/b/o lsrael), the failure to invest in necessary infrastructure--a dysfunctional government is arguably worse than none at all. We need $700B for the military, and can't spring for $70B/year for free college?

Finally, there is our grotesque and bloody abortion of a court system, which has literally rendered the Bill of Rights unenforceable. The right to a jury trial--the deprivation of which was a prominent casus belli in the other Revolution--has been extinguished. E.g., Benjamin Weiser, Trial by Jury, a Hallowed American Right, Is Vanishing, NY Times, Aug. 7, 2016. Our government is inadequate to the task of protecting our lives, liberty, and property, and Californians are well within their rights to walk away from it.

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Miss Creant
on September 24, 2017 at 14:32:44 pm

MH: "As it happens, it appears that you are correct that you know almost nothing about the civil war and its causes. It is also true that I know far more than you, since what you’ve said so far is hopelessly wrong."

Until you understand some basic international law, you're not going to get this subtle point of law. COTUS is a treaty between co-sovereigns, and applicable international law applies. COTUS was "ratified," in much the same way treaties with other sovereigns go into effect. All COTUS needed to go into effect was to have nine sovereign States ratify it; if NC chose not to ratify (they did this on the first pass by a 2-1 margin), it would not have been part of the US.

Most modern treaties have provisions for orderly withdrawal. By way of example, Art. 13 of NATO provides: "After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation." But if there is no formal mechanism for withdrawal, all a Party generally needs to do to withdraw is formally notify the other parties of its intent to withdraw, as long as one can be reasonably inferred (and it will be). See, VCLT, art. 56.

Back in the day, you simply withdrew.

So, what did the South do? They simply withdrew. And at least--according to President Buchanan--they had that right: "The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force." 4th SOTU, Dec., 1860.

And on the face of it, President Buchanan is right. There is no express or implied authorization to use force to preserve the Union in COTUS.

Yes, the South's actions were plainly motivated by an interest in preserving slavery. But the law doesn't care. They were within their legal rights to secede, and the question does not appear to be close.

Now, we turn to Lincoln. We know that he was hell-bent on keeping the Union intact, and would be perfectly happy to leave slavery undisturbed to achieve that end (because he said so!). So, what would he gain for the North?

The retention of the South, as a cash cow.

You throw around words like "treason," as if they meant something here. "Treason" is "the crime of betraying one's country, especially by attempting to kill the sovereign or overthrow the government," and the citizens of South Carolina attempted no hostility against the United States; they just left, but the United States violated THElR sovereignty. lf you are going to use legal terms, use them correctly.

MH: "Worse, we have documented evidence that the Tariff idea was instigated by unreformed traitors, Klansmen, and similar folks after the war when they started the Lost Cause rationalizations that attempted to paint the South not as treasonous, immoral slavers but as somehow noble freedom fighters. It’s sick. It’s pernicious. It still shows up today. In 1980 Ronald Reagan gave a campaign speech in Mississippi that referenced it in cynical dog-whistle language, consciously chosen by Lee Atwater."

Most folks here tend to worship St. Ronald of Reagan, but that is beside the point. All l am saying here is that the only fair way to judge the South is through the cold lens of the law, and for good or ill, the law exonerates them. l can abjure slavery and the Confederacy in general without playing fast and loose with the law.

MH: " Under the Articles of Confederation the USA was very much a confederacy of independent sovereign nations, much like the European Union today."

HUH? The EU is modeled after our COTUS, at least wrt the scope of Brussels's authority. Most notably, they have an enforceable BoR (we don't!), a common currency, and extensive centralized economic controls--even more than ours.

MH: "Which is why people like Madison decided that a new Constitution with a strong federal government that says in plain English that federal law trumps state law every time."

lt really didn't, before the CWAs. See e.g., Barron v. Baltimore. The States were both sovereign and largely independent, as evidenced by the bulk of the SCOTUS docket. Where authority was delegated to the Feds, their authority was plenary and supreme ... but the scope of their authority was rather limited. (This is what the States' Rights yahoos want to restore.)

lf you want to say that the South acted to preserve the institution of slavery, you will get no argument from me. But to say that they CAUSED the CW does not appear to be supported by the facts.

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Miss Creant
on September 24, 2017 at 23:33:13 pm
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z9z99
on September 26, 2017 at 00:30:08 am

[…] The Natural Law of Free Speech William J. Haun, Library of Law and Liberty […]

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PowerLinks 09.26.17 – Acton Institute PowerBlog
on September 26, 2017 at 18:28:32 pm

Miscreant wrote: "The term [happiness] is used in Marbury v. Madison, and in some 30 cases between 1800-1850 … but not one even tries to ascribe a legally relevant meaning to it."

As I pointed out earlier, there was no need to ascribe a definition because Chief Justice Marshall clearly alluded to the definition of happiness given in the May 1776 congressional resolution establishing de facto independence.
The May Resolution included this definition as part of a clever double tautology, simultaneously defining the terms "safety" and "happiness" in a way that is opaque to those who are ignorant of the Ciceronian style of discourse that was the standard of the day.

Miscreant claims that the May 1776 congressional definition of happiness as “internal peace, virtue and good order” reflected "societal aims, as opposed to personal ones." This assertion relies on the groundless and arguably absurd supposition that societal aims are incongruent with personal ones.

However, in the mind of John Adams -- the man who wrote the congressional definition of happiness -- societal and personal happiness are flip sides of the same coin. Adams wrote to Mercy Otis Warren in April 1776: "Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics." Of course, for Adams, as he wrote in "Thoughts on Government" (also April 1776), that " the happiness of man, as well as his dignity, consists in virtue." And here in "Thoughts on Government" -- written for his fellow delegates to the Continental Congress -- Adams wrote that "the happiness of society is the end of government, as ... the happiness of the individual is the end of man." Adams's May 1776 definition of happiness used three phrases that apply equally to public and individual happiness.

Furthermore, Adams' three phrases echo the discussion of PERSONAL happiness in Cicero, Cumberland and Burlamaqui (not to mention Turnbull and St. Germain), and it is clear that the "pursuit of happiness," as one of the unalienable rights mentioned in the Declaration of Independence, refers to a personal, not a societal goal.

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John Schmeeckle
on October 01, 2017 at 15:38:27 pm

ABSOLUTISM FOR THE TIMES IS CORRECT:
The problem of revisiting the intent of founding generations is in the recurring reference to Nature's Law. The entire definition of nature itself in regards to human will is in flux at present. This started with the realization that oppression of women being wrong is a truth. Whereas homosexuality and same sex marriage being justified by natural law as right is merely a cultural phenomena. With this flux in vector mode, what is considered value or valueless has now changed. Also, the sense that America's original Civil War remains relevant in its application of violence is where absolutist freedom of speech is correct for the times. The idea that a Civil War remain a relevant virtue to a republic is at the core of this debate. Values do not intersect in war because that is the very nature of war. In fact, debate, or restrictions of free speech are inappropriate at this time. In order to find truth, a civil war of assertive laws is necessary, and therefore, absolute.

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Michael S. Teruya

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