A Perspective on the Debate about "Originalism"

COMPARING THE U.S. CONSTITUTION (1788) TO THE ARTICLES OF CONFEDERATION (1781) – THE PERSPECTIVE IT OFFERS ON THE DEBATE ABOUT “ORIGINALISM”

We are reading a lot of discussion, triggered by the nomination of Judge Kavanaugh to the Supreme Court, about the merits of “originalism”—that is, a doctrine which, as I understand it, calls for rulings based on the literal reading of the Constitution and the best understanding of what the Framers meant by that reading.

Walter Williams’ column of 9/16/18 raises a fundamental question, as it cites two different sections of the Constitution which can lead to different conclusions on which responsibilities should be assumed by the Federal Government and which by the States.

The first cites James Madison and Federalist Paper 45:  “The powers delegated by the proposed Constitution to the Federal Government are few and defined” (dealing with external objects, such as war, peace, negotiation and foreign commerce), “the powers (delegated) to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

The other section comes from the Constitution’s Article 1, Section 8 with the phrase calling for the Federal Government to “provide for the common Defense and General Welfareof the United States.”  

The question?  What constitutes General Welfare?

Williams notes that in 1817, Thomas Jefferson wrote “Congress had unlimited powers to provide for the general welfare, but were restrained to those specifically innumerated.”

Since then there have, of course, been Constitutional Amendments (e.g., securing the vote for all; banning slavery) which resulted in the Federal Government’s assuming roles previously conferred to the states with inhumane consequences.

In addition to the Amendments, there has been legislation (often controversial) which has seen the Federal Government undertake programs for the general welfarenot specifically innumerated in the Constitution (e.g., Social Security, workers’ safety).

I don’t believe it would have been at all surprising to the Framers to see that learning experience have led to the adoption of Amendments and Federal legislation, conferring Federal authority on issues previously in the province of the states because they bear vitally on the general welfare.  

Why do I say they wouldn’t be surprised?  Importantly, they were vividly aware of the number of significant changes that had needed to be made in the Articles of Confederation in the seven short years between their adoption and the adoption of a new set of standards in our Constitution.

Here are just a few examples of the changes that occurred in that seven-year period.

1.    Establishment of new states.  Articles:  required agreement of nine states.  The Constitution required agreement of Congress.

2.    Congressional pay.  Articles:  paid by the states:  Constitution: paid by the federal government.

3.    Appointment of Members.  Articles:  all appointed by state legislatures, in the manner each legislature directed. Constitution: representatives elected by popular votes in the states, senators appointed by state legislators.

4.    Executive. Articles:  none.  Constitution:  president.

5.    Amendments to the Constitution.  Articles:  when agreed upon by all states.  Constitution: when agreed upon by ¾ of all states.

6.    Navy. Articles:  Congress authorized to build a navy; states authorized to equip war ships to counter piracy.  Constitution:  Congress authorized to build a Navy; states not allowed to keep ships of war.

7.    Power to mint money.  Articles: United States and the states. Constitution:  United States only.

My purpose in citing these differences is not to suggest that the Constitution isn’t the foundation document which must be greatly respected.  It is to suggest that recognizing that in seven short years the founders had changed their minds on what constituted the correct role between the states and the federal government, it should not be surprising that over the course of the following 230 years, there would be changes in what constitutes the proper role of federal and state governments to achieve a condition of general welfarefor the citizens of the United States that is most desirable.

It can be (and will be) argued that such changes should be embodied in amendments as they have in many cases. However, it is also appropriate that such changes be embodied in legislation.  The Supreme Court has the responsibility to review the correctness of this legislation in light of the Constitution but it should bear in mind that—just as was the case between the Articles of Confederation and the U.S. Constitution—we should be open, based on experience, where responsibility should be allocated between the federal government and state government. 

“Originalism,” if taken to the point that we can only do what Thomas Jefferson would have viewed as correct in 1817, would be a position that I feel certain Thomas Jefferson would have declared to be wrong.

Let me emphasize that I hew strongly to what would be described as a “conservative” (I’d prefer “liberal”) position on the importance of honoring State’s rights.  I do so for two reasons.  First, because states do differ in their history, experience and needs of their citizens.  Second, and in some ways more important, states have and can serve as laboratoriesfor new learning on how to resolve and best deliver services needed to advance the welfare of the nation’s citizens. To take only one example—allied closely to my own interests—it has been the experience of different states in advancing early childhood development and pre-school education that has shown not only their value but the best ways of achieving that value.

As other examples, while I believe access to affordable, quality health care is a right that should be available to all citizens (without good health, what chance does anyone have to achieve a fulfilling life?), I agree that giving states latitude in howto best achieve that objective makes great sense because we have much more to learn.  Interestingly (and rather ironically) on health care, it was the initiative of Republican Mitt Romney as Governor of Massachusetts which produced a template which was largely adopted by President Obama with the Affordable Care Act. (This, despite the fact that it has been vigorously attacked by Republicans.)

I believe the decision as to how much latitude states should have in enacting a federally mandated right will forever be a matter for legislative and judicial dispute.  Take voting.  The right of every person to vote is now constitutionally mandated through the 15 ^thand 19^thAmendments.  However, states still have significant latitude in how the right to vote is administered and enforced.  Some “methods of administration” amount to clear-cut “suppression”; for example, literacy tests, which are now banned.  Others are more subtle such as restricting the number of polling places or the days and hours of pre-election day voting.  They will undoubtedly be the subject of continued adjudication.  The guiding rule should be to take every reasonable step to allow every citizen to exercise his or her right to vote.

Personal Reflections on "Man's Search for Meaning" by Viktor Frankl

I am reposting this from 4 years ago. It just seemed  so timely.

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Few books have meant so much to me as Man’s Search For Meaning by Viktor E. Frankl.

Of course, I have quoted and thought about Viktor Frankl and his life many times.  His life in concentration camps, his reflections on what that had meant to him.  His so well-expressed belief that it is not one’s circumstances but one’s reaction to them which matters most.  His book, which has gone through countless printings, and sold over 123 million copies, is one that I had never read before.  It is short and utterly profound.  It is founded on the belief that life is not primarily a quest for pleasure or a quest for power, but it is a quest for meaning.  And Frankl finds that quest for meaning deriving from three sources:  an activity or act to which one commits himself; an experience, particularly an experience of love, but also the experiencing of nature; and the meaning that flows from the dignity with which one approaches suffering.

Frankl’s most enduring insight is that forces beyond our control can take away everything we possess except one thing, our freedom to choose how we will respond to a situation.  We cannot control what happens to us in life, but we can always control what we feel and do about it.  We are never left with nothing as long as we retain the freedom to choose how we will respond.  There are so many galvanizing perspectives here:

The advice that one should not aim for success, but rather realize that success like happiness must ensue and always does ensue as the unintended side effect of one’s dedication to a cause greater than oneself or as the bi-product of one’s surrender to a person other than oneself. 

I was captured by Frankl’s revealing of a thought which transfixed him in the concentration camp – that for the first time in his life he saw the truth that love is the ultimate and the highest goal to which man can aspire.  Surely “the salvation of man is through love and in love.”  At these moments he thought of his wife.  He didn’t even know if she was still alive, but he knew that “love goes very far beyond the physical person of the beloved.  It finds its deepest meanings in a spiritual being, his inner self.”  He said there was no need for him to know (if she was alive).  “Nothing could touch the strength of my love, my thoughts and the image of my beloved.  Had I known then that my wife was dead, I think that I would still have given myself, undisturbed by that knowledge, the contemplation of her image, and that my mental conversation with her would have been just as vivid and just as satisfying.”  Isn’t this how we can recall and do recall those whom we have loved who have passed away in death?

Frankl reflects on the choice that the concentration inmates faced.  And he does not suggest that many, let alone all, faced it successfully.  The choice revolved around whether the individual would struggle against the situation to save his self-respect, being an individual with a mind with inner freedom and personal value.  He had the choice of thinking of himself as only part of an enormous mass of people, his existence descended to the level of animal life.  He did not fault those who succumbed to this.  But he celebrated those who maintained their individual dignity, who recognized that finding meaning at that moment involved determining what they could do to make the most of every moment, to capture the view of a living tree or a sunrise, to do something for a fellow inmate. 

Others, “instead of taking the camp’s difficulties as a test of inner strength, preferred to close their eyes and to live in the past.  Life for such people became meaningless … it is a peculiarity of man that he can only live by looking to the future and this is his salvation in the most difficult moments of his existence, although he sometimes has to force his mind to the task.”

Frankl returns to the thought expressed above many times.  He turns to another thought later in the book which I think has equal merit and, in fact, seems to co-exist with his admonishment of looking to the future.  Here he points out that “instead of possibilities in the future, we can view realities of the past – the potentialities they have actualized, the meanings they have fulfilled, the values they have realized – and nothing, nobody can ever remove these assets from the past.”  He says eloquently that “people tend to see only the stubble in fields of transitory-ness, but overlook and forget the full granaries of the past into which they have brought the harvest of their lives; the deeds done, the loves loved, and last but not least, the sufferings they have gone through with courage and dignity.”

This is a wonderful thought which I and all of us should take heart from.  We must remember our victories, our blessings, and draw strength from them even as we at the same time identify our purpose and the meaning of our lives as we go forward.  

There’s another aspect of this book which bears deep thought.  And that is the emphasis Frankl brings to the value of not only being what would be described as “useful,” but being valuable in the “sense of dignity” that one displays in living one’s life.  This certainly applies to how one handles setbacks and suffering.  It is important to note that Frankl insists that he’s talking about bearing with suffering which cannot be avoided.  If suffering can be avoided, the first command is to avoid it, but there is other suffering, such as an incurable illness, which cannot be avoided, and it is the dignity and courage with which one handles this, the amount that one still takes from every day, that not only represents living life as well as one can, but represents a model for others to emulate.

Frankl has perspective on “freedom” with which I agree entirely.  He regards freedom as only part of the story.  Freedom is a negative aspect of the whole phenomena within which responsible-ness is the positive aspect.  “In fact, freedom is in danger of degenerating into mere arbitrary-ness unless it is lived in terms of responsible-ness.” 

Frankl ended his book by noting that rather than talk about “saints,” why not just talk about “decent people.”  “It is true that they form a minority.  More than that, they will always remain a minority.”  Our challenge is to join the minority.  “For the world is in a bad state, but everything will become still worse unless each of us does his best.”  Words to sign on to.

[Frankl was once asked to express in one sentence the meaning of his own life.  He wrote the response on paper and asked his students to guess what he had written.  One student surprised Frankl by saying “the meaning of your life is to help others find the meaning of theirs.”    “That was it, exactly,” Frankl said.  “Those are the very words I had written.”]

I HAVE RAREY IF EVER READ WORDS THAT BETTER SUM UP MY PERSONAL MISSION IN LIFE. (JEP).

Again, this is a book of less than 170 pages.  It contains enormous wisdom.  I hope that I can internalize the best of it and live it.

"How Might Can Overcome Right" and the Consequent Need for Courage

Several years ago I read a book written by Iris Origo, “War in Val d’Orcia.”  It was a diary written by an English-born woman who married a wealthy aristocratic Italian and moved with him to develop an estate in the Tuscan hills in the 1930s. 

This diary tells the inspiring story of how she and other Italians sheltered and saved the lives of dozens of American and British airmen who had bailed out over Italy, as well as Italian artisans combatting the Nazi army.

This is one of the most inspiring books I have ever read, as it brings to life people’s willingness to risk their own lives to save the lives of others.

I recently read another diary by Iris Origo, written during the years 1939-1940, leading up to Italy’s alliance with Germany.  It is called “Chill in the Air.” It tells a very different story. 

This diary traces the increasing concern on the part of most Italians that they will become involved in the escalating war. Most do not like Germany.  Many choose to believe that Mussolini will be able to keep the country out of the war.  Month to month, however, the power of Germany’s army becomes clearer as it overwhelms Belgium and France and occupies Paris.  Relentless propaganda is brought to the Italian public trumpeting England’s so-called “imperialistic” intent with the accompanying vision that, allied with Germany, Italy could control the Mediterranean and have its "proper role in the world.”   All of this this leads to increasing support for Germany.

As 1940 unfolded, the Italian newspapers pointed to a picture of impending doom for the English.  The Italian ambassador to England describes a future which will see the complete domination of Europe by Germany.  Italy should then become, in his opinion, a tourist country, "attracting the money of all the pleasure-seekers of the world."  The English, he maintained, "are done for because their character is now hopelessly rotten; all that is left is corrupt and sterile."  It is hardly possible to overstate (Origo writes) how universally this opinion is now held here.  Daily, the press and radio insistently proclaim the inevitability and immediacy of the destruction of England, her incapacity to defend herself, her lack of trained men, of munitions, of food.  Churchill’s speeches are considered vain boasts based on no foundation of fact.  

At the German Embassy in Rome, it is said, “There are both optimists and pessimists.  The optimists say that the war will be over in mid-August; the pessimists in September.”

In mid-July1940, after having defeating France, Hitler makes a speech which, in Origo’s words, “is received here with almost universal approval; even those people who are not admirers of Nazism consider it a genuine effort towards peace and a last chance for England to save herself from destruction; that this destruction will be inevitable and will be swift, if it were to attempt it, no one doubts.”

These diary entries, Iris Origo writes, represent the "general opinion" in Italy, demonstrating how public opinion can shift in light of perceived strength and "inevitable outcomes."  

They demonstrate how people can be prepared to board a fast-running train even if they don’t agree with its destination. They warn us against what can be a strong even if cynical view that "might makes right.” 

This explains a lot in human history.

Much more hopefully, this chapter of history further underscores the courage of the British people (as well as the Italians, whom Origo celebrated in her other diary).  They and millions of others risked and gave their lives to deny and thwart what was seen by so many as the “inevitable” victory of Germany. 

"Is There Such a Thing as Truth?"

“

This seems like such a silly question.  Why would one bother to ask it?

 

I am writing about it at this moment because of the ridicule of former Mayor of New York Rudy Giuliani's almost comic assertion on Meet the Press as to whom to believe on the Russian investigation:  “Truth isn’t truth.”   Or, as Nietzsche wrote, “There are no facts, only interpretations.”

 

It reminds me of a talk I gave decades ago.  Its subject was a seemingly unarguable statement which should need no inquiry:  “Does Character Count?”  When I was first asked to address this, I asked “Are you serious?  The answer is obvious.”  The person I was talking to disagreed.  She said it wasn’t obvious and she wanted her students to know why I felt it did count.

 

Today, in the Trump Presidency, this question--"Does Character Count?"--demands an affirmative explanation, given its notable absence in so many of Trump's actions and statements. 

 

However, the subject I address here is, What constitutes truth?

 

To begin, I cite this from Steven Pinker in his book Enlightenment Now:  The Case for Reason, Science, Humanism and Progress.

 

“Reason is non-negotiable.  As soon as you show up to discuss the question of what we should live for (or any other question), as long as you insist that your answers, whatever they are, are reasonable or justifiable or true and that, therefore, other people ought to believe them, too, then you have committed yourself to reason, and to holding your beliefs accountable to objective standards.”

 

I embrace every word of this statement.

 

Our critical mandate is to hold ourselves accountable for assessing what we believe is truth in light of the latest emerging evidence.

 

Viewed in this manner, there are different categories of truth.

 

There are facts that we can be certain will not change in their truthfulness.  Examples would be:

 

·       Two plus two equals four.

·       All human beings will eventually die.

·       Lincoln was the 16^th President of the United States.

·       The Cincinnati Reds play baseball in Cincinnati.

 

Then there are truths which we assert based on the evidence in hand, recognizing the possibility that new evidence could change that view.  For centuries most people felt the earth was flat.  New evidence showed it was round.  A personal example of this is lodged in an essay I wrote during my junior year (1959) at Yale on Reconstruction.

 

I shake my head today as I read how I criticized, even castigated, newly-elected African-American congressmen for their naiveté and ignorance.  I concluded that it had been a mistake to allow these men to occupy political office.  I failed to recognize and appreciate what historians have come to correctly see as the courageous effort of newly-freed African-Americans to assume a leadership role in political life despite continued discrimination.  For me, this will always be a humbling reminder to keep my mind open to the possibility of a different interpretation compared to the one I hold now--informed by new facts and appreciation of the context and environment in which people lived.

 

There is a potential danger in this recognition of the vagaries and unintended consequences of historical events.

 

As historian Richard Hofstadter pointed out almost 50 years ago, “The great fear that animates the most feverishly committed historians is that the continual rediscovery of the complexity of social interests, the variety of roles and motives of political leaders, the unintended consequences of political actions, and the valid interests that have so often been sacrificed in the pursuit of other equally valid interests, may give us not only a keener sense of the structural complexity of our society in the past, but also a sense of the moral complexity of social action that will lead us toward political immobility.”

 

A sense of history, the eminent scholar Richard F. Neustadt warned, can be “an enemy of vision” or, I would add, “an enemy of making a considered judgment.”

 

We must be willing to render a judgment when we have compiled a body of compelling evidence and the importance of the issue requires us to.  But we must always be open to what Pinker describes as “reason" to reconsider our judgment in light of new evidence. 

 

What is most dangerous in the Trump administration is a lack of respect for truth.  A willingness to continue to propound positions which the available body of evidence says are wrong.   Like Trump’s claiming more people attended his inauguration than any other, despite the photographic evidence showing the crowd for Obama’s inauguration was larger.  Or Trump’s supporting the allegation that Obama was born outside the United States, long after his birth certificate and other evidence indicated this was untrue.

 

All this takes me back, chillingly, to what Goebbels said during the Nazi era.  In so many words, "If you keep telling people a lie, again and again, many will come to believe it." 

 

The respect for truth--for the objective determination of what is true based on all available evidence--is a foundation for all interpersonal relationships as well as the life of any organization.  Its denial must be resisted like the plague.

  

A Grim Book--Not To Be Missed

THE FIGHTERS:  AMERICANS IN COMBAT IN AFGHANISTAN AND IRAQ

BY C.J. CHIVERS

 

This is the most vivid, emotionally riveting and moving, sobering and inspiring and, in many ways, maddening book on war I’ve ever read. 

 

And I almost stopped reading it on Page 121.  

I had had enough; enough depiction of pain.  Of fruitless deaths.  Of misguided missions.  I put the book in a box with other books to be delivered as giveaways to the Public Library.

 

Then I read a Sunday New York Times review of the book.  It made me stop.  It described stories I hadn’t come to.  Stories of soldiers recovering from massive, life-changing wounds.  Stories of soldiers who didn’t recover.  Stories of their families.  Stories of combat so viscerally described I felt I was in the Humvee or in the airplane.  Descriptions of a bullet rupturing a face, cheek to jowl.  Descriptions of unsparing prose.  Short sentences, saying more than a long sentence ever could.  

 

So I went back to the book.  I finished it today.  I don’t think I’ve reached any conclusions that would surprise anyone.

War is hell.  

 

Never go into a war unless we’re certain it’s the only path forward.  

 

Never go into a war without a clearly defined end-point.  

 

Never go into a war without realistically assessing the chance for peace to be restored and a better outcome achieved.

 

Never go into a war without understanding the history of the place.  

 

We didn’t apply these beliefs in Afghanistan or Iraq.  

 

None of this is to say that we didn’t need to take action against Al Qaeda and ISIS which emerged from the forces we unleashed by our ill-conceived attack on Iraq.  But it should have been surgical.  In view of the history of these countries, it was the height of arrogance to think we could win the loyalty of the Afghani and Iraqi citizens, especially when we were killing their families and children, as is so painfully documented in Chivers’ book.  

 

So many lives wasted, so much turmoil in the Middle East still flowing from this ill-conceived and badly executed undertaking.

 

 

Religion And The Pursuit of Humanistic Values And Steven Pinker's "Enlightenment Now"

This well-reviewed book, acclaimed by Bill Gates as “the best book” that he’s ever read, makes a passionate argument that, by invoking “reason, science and humanism,” we can come together to do what’s necessary to help ourselves, those closest to us and everyone “flourish.”

 

His argument, in the end, rests on the belief that it is “natural” for humans to recognize that this way of life is right for themselves and for humanity.

 

He denounces religion and faith in God as not only implausible and wrong, based on all we know about science, but that its pursuit has resulted in such violence and harm to other people (e.g., religious wars) that it has to be thrown away.  

 

He goes on to also identify fascism and nationalism as tribal cultures that wreak havoc on mankind.    How true that has been.  His book has a hard time coming to grips with the fact that countless members of the intellectual and academic elite have supported fascist and extreme nationalist leaders like Hitler, Mussolini and Stalin.  

 

I believe Pinker’s underlying assumption of the “goodness of human nature” is too positive.  If only he were right.  There are instincts in every one of us that seek to lift ourselves up by comparing ourselves to some “others” whom we diminish for our own benefit.  This instinct will never go away.  

 

It is Pinker’s attack on religion—on having a faith in God—that hits me most deeply.  For he’s right in saying that our knowledge of how the universe has evolved, and our knowledge of the role of evolution and science does not leave space for certain knowledge that there is an originating God.  Particularly problematic is the belief which I’ve carried to a greater or lesser degree over time that God is playing a personal role in my life.  I’ve always worried that this is presumptuous.  I still do today.

 

Still, I have no doubt that, in my own life and countless others, the belief that there is a God that wills kindness over meanness, beauty over ugliness and that the words of Jesus carry meaning and power enables us to better live the humanistic values which Pinker advocates than we would if it were not for our belief in God and those teachings of Jesus.

 

Yes, terrible crimes have been carried out in the name of religion:  Christian, Muslim and others.  But that does not negate the fact that religious beliefs which celebrate the dignity of every single person have been a force for good on the part of countless individuals and collections of individuals.  For me, while there are other paths to broaden the practice of humanistic values, I do not see one that negates the contribution of religion and a faith in God.

 

What Geese Have to Teach Us

 

As each goose flaps its wings, it creates uplift for the bird following.  By flying in a “V” formation, the whole flock adds 71% more flying range than if each bird flew alone.

 

Lesson 1 – People who share a common direction and sense of community can get where they are going quicker and easier because they are traveling on the thrust of one another.

 

When a goose falls out of formation, it suddenly feels the drag and resistance of trying to fly alone and quickly gets back into formation to take advantage of the lifting power of the birds immediately in front.

 

Lesson 2 – If we have as much sense as a goose, we will join in formation with those who are headed where we want to go.

 

When a goose gets tired, it rotates back into the formation and another goose flies at the point position.  

 

Lesson 3 – It pays to take turns doing the hard tasks and sharing leadership with people as with geese – independent with one another.

 

The geese in formation honk from behind to encourage those up front to keep up their speed.  

 

Lesson 4 – We need to make sure our honking from behind is encouraging, not something less helpful.

 

When a goose gets sick, wounded or shot down, two geese drop out of formation and follow their fellow member down to help provide protection.  They stay with the member of the flock until he or she is able to fly again or pass away.  Then, they launch out on their own with another formation or catch up with their own flock.

 

Lesson 5 – If we have as much sense as the geese, we’ll stand by one another like they do.