Constitution

The Jefferson-Madison Debates: The Problem with the Supreme Court Today

November 13th, 2018 // 7:31 am @ Oliver DeMille

I.

The Supreme Court is the biggest potential danger to the United States.

Too strong? Not really. Thomas Jefferson warned a long time ago that the Supreme Court would eventually be the downfall of the Constitution and even the United States.[i] His concern was simple: there are no effective checks or balances on the Court. When push comes to shove, the Court can rule whatever it wants by majority decision. And that’s that.

It is also why the demonstrations were so intense during the 2018 Kavanaugh hearings and confirmation vote, and the election a month later. It is the main reason such undue pressure—some natural, some funded by Leftist billionaires—was brought to bear against certain Senators during the hearings and in Senate and House races during the election. And why savvy observers on both Left and Right, as well as many Independents, feel uneasy even after the hearings and elections are over. An indelible image remains for anyone who closely watched the protests: Americans standing and clawing helplessly on the giant doors of the Supreme Court building, apparently wailing in forlorn agony.

Why the anguish? Why the writhing and screaming, the threats and promises of more theatrics to come? Why the secretive tactics of politicians and the widening divisions of American politics? It’s more than just anti-Trumpism, or extreme party squabbling. Something else, something deeper, is at play here. But what is it, exactly? What’s all the fuss about?

Answer: Jefferson had it right. The truth is that the Supreme Court has too much power. It can rule whatever it wants. And whatever it decrees isn’t even called a “decree”, or “edict”, but rather a “finding” or “judgment”. It all sounds objective, clinical, innocuous, but the power is real. Indeed, the modern Court “finds” what the Constitution means, and announces such “findings” to the rest of us, to the peons. This isn’t what the Framers had in mind. Make no mistake, the “peons” are everyone that’s not a majority Justice on the Court. Five people can rule us now, on pretty much anything.

This brought the Left to its extreme tactics in 2018. A fifth Right-leaning vote would lead to the biggest nightmares people on the Left can imagine: a government that outlaws abortion, rules unfavorably on homosexuality, or implements laws that raise one race or religion above others or certain races or religions below the rest. Such laws might be extreme or mild, but even the so-called “mild” ones seriously threaten the deepest values of the Left. Imagine a “mild” law that requires your [race, or religion, or whatever it is] to obey a more harsh set of laws than any other race or religion, or face annual penalties. Suddenly it’s not so mild.

For those on the Right, the danger is just as real. If the Court can do any of the things just listed above, a five-decision majority by some future Court, or the current Court with just one Justice switching sides on a specific decision, can also create the nightmares of the Right: drastically regulating religion and the way people worship, or outlawing religious practice, entirely outlawing guns except for those carried by government agents, taxing at extreme rates or government fixing of prices in the economy, ending state sovereignty and making all states the same (becoming mere enforcement hubs of the national government), or outlawing all education except mandatory public schools.

If a future Court rules 5-4 on any of these things (say massive regulation of religion and forcing people to worship a certain way outlined by Washington D.C., or outlawing all firearms except those carried by police and secret government agents), members of the Right may well find themselves clawing and wailing at the front doors of the Court. Or, not unlikely for some people, refusing to obey, and facing the violent consequences. If Hillary Clinton had been elected in 2016 and appointed a second Justice to the Court in 2018, how would the Right have responded? And if Trump gets to appoint a third Justice, or even a fourth, the backlash will likely be even more extreme.

There are at least two major issues at play in all this:

• First, we’ve had partisan majorities on the Court before—so why is this such a big problem right now?
• Second, what can be done about this situation? How can we fix the problem, before it becomes a violent battle within our nation, a new Civil War of some kind?

II.

The answer to the first question makes the second even more relevant, because the types of issues currently at the center of the division are matched in U.S. history only by the rift between North and South prior to the Civil War. The Court mirrored the nation in this divide, and bad Court decisions just before the War fueled the problem. However, no single Court decision caused the Civil War, largely because the national divide was sectional—meaning the large majority of people in Southern states, and the large majority in Northern states, respectively, were willing to allow the different states to do their own thing, different from any universal national decree, and the Court went along with this. Thus the battles were mostly fought outside the Court.

Today’s scenario is different. The national division is now found in every state, and while some states lean Left or Right, there is no clear Sectionalism, no geographical region in the nation where almost everyone loves the values of the Left and hates the values of the Right, or vice versa. There are, of course, Blue coastal states that typically vote Left, and a Red state interior that votes largely Right, but in each state there is also a significant rural-versus-urban division in values, as well as a large number of Independent voters who side some Left and some Right (at differing levels and without formal organization). Likewise, there are significant generational divisions in terms of Left-versus-Right values, which manifests in most organizations, and even families.

Given this new arrangement, a Civil War in today’s world would literally pit neighbor against neighbor, and in many cases sibling against sibling and lots of Boomer/Gen X parents against a number of Millennial/Gen Z offspring and youth. This divide extends across the nation, to every state and almost every neighborhood and home. This is the exact kind of potential conflict the Supreme Court was created to prevent. Unfortunately, by forcing itself into numerous unconstitutional arenas that it was supposed to leave to other branches and levels of government, the Court has sacrificed much of its original moral authority. It has far too much power in some things, and not nearly enough moral power now to address some of the main reasons for which it was established. This is both ironic and dangerous.

Some observers argue that the real danger now, as opposed to just before the Civil War, is that the Court has become hyper-partisan. This is a problem, but it isn’t the problem. More on that later.

First, it’s worth noting that hyper-partisan divides on the Court are inevitable. The Framers didn’t want political parties, but they knew there would be strong political divisions at times—and that on occasion this would extend to the Court. When such divisions are based around core values, the Framers wanted the Constitution or the voters to have the final say–not five individuals in black robes. The Court was designed to address the two sides of any specific case, as needed, but not to create a general legislative framework or law for everyone.

Moreover, the Court isn’t equipped to deal with the realities of hyper-partisanship. It is structured in a particular format that doesn’t translate to the nuanced needs of fixing the nation’s political and values divide.

Specifically, the Court hears cases and decides a winner and loser in each case. This doesn’t lend itself to long-term solutions of problems that require deftness, flexibility, and widespread individualization. That’s why the Framers put all legislative powers in the hands of Congress, state legislatures, and local representative and even fully democratic bodies (e.g. Townships and Town Meetings, at the neighborhood level of local governance). Legislation is needed to address multiple, leveled, complex negotiations and outcomes. No decision of the Court can do this, not even with well-articulated dicta (since the words of the majority opinion are open to wide interpretation, without the benefit of floor debate, hearings, rebuttals, direct amendments, etc.).

For example, consider one of the largest value divides in current American politics. The Left often hurls claims of “racism” or “sexism” when fighting battles with the Right; the Right tends more to claims of “Socialist” when battling the Left (it once appealed to “Atheist” as well, but this has lost much of its sting in recent decades). If such a battle were taken directly to the Court (it’s hard to imagine a case so perfectly aligned), the decision of the Justices, whatever the arguments of the two sides, would choose a winner and select a loser.

The winner would immediately tend to promote its entire ideology as vindicated by the Court; the loser in this case would try to narrow the scope of what the Court actually decided, but the moral loss would be real, and no doubt a lot of the nation would refuse to accept the decision. And for good reason: If the Court declared you a “racist”, a “sexist”, or a “socialist”, would you just shrug and agree? Most people wouldn’t, regardless of how much they revere the Court in other matters. Their mind and gut (or pride) would tell them that the Court got it wrong in this instance, because you know better than the Court whether or not you’re actually a racist, sexist, or socialist. If you’re not, the Court “finding” is just plain wrong, no matter how many Justices decide against you. On the issue of core values, the Court has little appeal to truth, regardless of how much authority it claims.

The reality of such a divide is much better worked out in the legislative branch. Specifically, the claims of some on the Left that many on the Right are racist and sexist turn out to be mostly false, but partially true. There are a some racists on the Right. But, to be clear and accurate, most people on the Right are not racists. Same with sexist. Also, to be clear, there are some on the Left who are racists as well, along with some sexists.

On the other side of the argument, claims from the Right that most Leftists are socialists turn out to be largely false, but partially true. There are some socialists on the American Left. In the younger generation, there are more who claim to be socialists than in older generations. And there are also a few socialists who claim to be on the Right. Moreover, there are a lot of people who define the word “racist” differently than others, and the same applies to “sexist” and “socialist”, further muddying the waters. Indeed, there are nuances to all such claims.

A Court (no matter how erudite) that is required to decide cases by majority, giving a win to one party in the case and a loss to the other, can’t effectively deal with this level of ambiguity and legislate for the whole nation. The Court is well equipped to deal with one thing: an individual case, with its own set of facts, applicable laws, details, nuances, unique circumstances, etc. This is why the Framers gave us the kind of independent, supreme, and empowered court that they did—to deal with each case as needed. Not to legislate for the entire nation, all in the name of precedent.

The problem with precedent is obvious: no two cases are the same. Trying to apply the “findings” in one case to almost any other case changes, by definition, the actual “findings” to a more general legislation, and the Court has no constitutional authority to legislate. Articles I, II, and III are clear about this. Except, of course, for the legislative authority the Court has unilaterally usurped over the years. The use of any such authority by the Court is, of course, unconstitutional, illegal, and wrong. We’re using here the definition of “unconstitutional” used by the American Founding generation, meaning in conflict with the words of the actual Constitution and Amendments. The Court has also usurped this word, defining “unconstitutional” as whatever the Court says is unconstitutional. How convenient for them. And, let’s be honest, this is itself unconstitutional according to the original meaning of this word as used and intended by the Framers.

III.

Hyper-partisanship is a problem because it catalyzes extreme views and even extreme actions. When the Court becomes part of the frenzy, it loses its power to peacefully resolve the greatest problem of all free nations—irreconcilable divisions about the use of force, law, and state-imposed violence against citizens (including large groups of citizens, be they protestors, political parties, etc.). The purpose of the Court was to reconcile just such divisions without requiring bloodshed. This is why the Framers gave the Court final judicial power in any given case arising in the nation.

The problem with such levels of power is that…well…the holders of such power might use it poorly. Corruptly. Ignorantly. Or, unwisely. To see the potential danger of this possibility, imagine the mobs and violence that would ensue in certain parts of the United States if the Court reversed Roe v. Wade and made all abortions illegal. Or, alternatively, ruled that ownership of any gun is illegal, or that people of one skin color (yours, for example) don’t have any more rights under the Bill of Rights, or that all members of one religion (yours, again) may no longer legally practice their faith. Wherever you stand politically, one or more of these probably sounds drastic to you—worth fighting against, possibly even worth dying for.

The problem is that the Court, as currently understood by most Americans (including some of the Justices), has the authority to do any of these, or all, along with a number other things equally drastic. So when the Court seems to be swinging one way or the other, a lot of people are going to feel deeply threatened. Their most cherished values seem to be in peril. In some cases, they truly are in peril.

Let’s get personal. If the Court decided some certain things, you would likely be willing to fight to the death to stop them. One of those things might be on the list above, or it may not. But something could probably cause you to stand up and fight, and whatever that thing is, the Court has the power to decide it. Its power and reach is basically unfettered, at least in theory. It likely won’t do the kinds of things that make large masses rise up in blatant or even violent refusal. But it has that power. That’s the rub. The protestors clawing at the door of the Court could have been you, given the right situation. And such a situation may still come. For many on the Left, it is a daily worry that such a thing might happen. For many on the Right, the same worry weighed them down for 8 years under Obama (after all: with a Left-leaning President in the White House, one who openly ridiculed religion and gun ownership, among other things, and a Centrist carrying the swing vote on the Court, they reasoned that almost any decision was possible—and they would be even more worried with a significant Leftist majority on the Court).

Ultimately, few Americans should feel safe in their deepest values when the Court can do as it pleases. Jefferson warned of this when he first read the Constitution. And hyper-partisan efforts typically exacerbate the problem. For example, when the Democratic majority in the Senate strategized to get rid of the power of the filibuster and push things through with just a simple majority vote, it mocked Republicans who felt a major loss of their own minority power. Some warned that the time would come when Democrats would feel the other side of this same decision. It happened less than a decade later, when voters put Republican majorities in both House and Senate. At this point, Democrats mourned the loss of filibuster power—but it was too late.

Today many Republicans feel a sense of relief that the Court leans Right, at last. But things have a way of swinging to the other side of the pendulum—at some point the Court may lean strongly Left. As long as the Court has too much power, half the nation is going to live under threat of serious peril.

Something needs to give.

IV.

What can be done to fix the problem? First, a number of proposals have already been made. Jefferson put it succinctly:

“At the establishment of our constitutions [both federal and state], the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous…that their decisions, seeming to concern individual suitors [cases] only, pass silent and unheeded by the public at large; that these decisions nevertheless became the law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction, before anyone has perceived that that indivisible and helpless worm has been busily employed in consuming its substance.”[ii]

Strong words.  The Framers wanted to reject the old-world practices of judicial precedent and political parties, and they tried to write the Constitution in a way that would elect officials without political parties and create a Supreme Court and judiciary that decided individual cases but created no precedent from any case or dicta. A clear reading of the Constitution, particularly Article III, shows this—as do the Federalist Papers and writings of the leading Framers and other Founding Fathers. Jefferson continues:

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore un-alarming, instrumentality of the Supreme Court.”[iii]

No bigger danger to the United States? This is serious business. Today, as mentioned, the same threat is even bigger. Jefferson wrote that “One single object” would significantly improve the Constitution, specifically, “that of restraining judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our general government [the federal government], but what I call our foreign department.”[iv]

Note that Jefferson calls the federal government “our foreign department”, since if the Constitution is followed the only powers of Congress, the Executive Branch, and the Supreme Court are to protect the nation from outside attack and keep the peace between the states. Everything else is left to the states, or the people in a more local setting. And, of all three branches of the federal government, Jefferson was most worried about the usurpation of power by the federal courts.

But what exactly were the federal courts, including the Supreme Court, doing that was so bad? Why was Jefferson so concerned? He says that the Judges and Justices “are practicing on the Constitution by inferences, analogies, and sophisms as they would ordinary law.”[v] He declared that the Justices didn’t seem to realize that the Constitution was written to them as much as to other branches of government.

To repeat: the Constitution was written to limit the Court, too, and the Framers and those who ratified the Constitution believed that the Court and Justices would be required to obey it. Justices have the authority to use inference, analogies and other arguments to apply the laws of the land, made by Congress, or by state legislatures, but they have no authority whatsoever to do this to the Constitution. The Constitution itself forbids it. The Court is supposed to apply the Constitution to any case it hears, and it can review and apply ordinary laws—those made by Congress, following the Constitution—to a case as well, but neither the Justices nor federal judges get to restructure or redefine the Constitution by informing the rest of us what the document means. The Court, according to the Framers, is just as bound by the Constitution as the President, the House, or the Senate. It can’t just announce that the Constitution means whatever a majority of the Court wants it to mean—or “finds” it to mean. At least, that’s what the document itself allows.

Jefferson warned that ignoring this part of the Constitution would lead in the wrong direction: “Our government is now taking so steady a course as to show by what road it will pass to destruction, to wit, by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary; the other two branches the corrupting and corrupted instruments.”[vi]

What exactly does he mean by “consolidation”? Answer: the Court at the time was announcing that it had the Constitutional authority to determine the meaning of the Constitution—each word and phrase (the Court would later claim that their power applies even to ideas not actually mentioned in the document). Jefferson questioned where in the Constitution this authority was given? What Article, what section, what phrase. The response, from members of the Court, was that this was the natural course of the Court’s power. In other words, no such power exists in the Constitution itself, but the Court could do it anyway because that’s just what Courts do.

Jefferson disagreed. He maintained that, while the Courts in Britain had at times wielded such power, the U.S. Constitution specifically and purposely changed this type of jurisprudence. The Framers (and those who ratified the Constitution in all 13 colonies) didn’t want the judicial branch in the United States to follow the British model, to consider itself above the law, able to “find” and “decide” what the Constitution means. Again, the federal judiciary was designed by the American Framers to apply the Constitution, to hold the Executive and Legislative branches, and the states, to the bounds of the Constitution in any given case.

But neither the Framers nor the words of the Constitution give the Court any authority to define or determine its own power, and certainly not the authority to consider itself above the Constitution or re-frame the meaning of words and phrases in the Constitution by judicial review or decision. No such power exists in the Constitution, and it was written this way on purpose. Nevertheless, the early Court adopted such powers, usurping them, and the Executive and Legislative branches submitted to such power, not based on the words of the Constitution (indeed the words are the opposite) but based on the fact that so many American lawyers were steeped in the customs and habits of English law.

As mentioned above, Jefferson saw this as the biggest threat to the American system and Constitution. Following the English approach, instead of the Constitution, was a major mistake. And it was unconstitutional.

Why did anyone allow it to happen? The Court did it to expand its power. This is easy to understand—government entities almost always try to expand their power. But what about the other two branches, who were designed to check and balance each other and the Court?

Answer: By allowing the Court to do this, the Executive and Legislative branches in Washington received a huge benefit—the “consolidation” (Jefferson’s word) of power away from the states and local governments and into the House, Senate, White House, and federal bureaucracies. In essence, as Jefferson warned beforehand and later pointed out when it actually happened, the Congress and Executive Branch looked the other way and allowed the Court to unilaterally crown itself the final power in the nation—to say what the Constitution means and doesn’t mean, by a majority decision of just 5 people, with no check or balance that can contradict it. As a reward, the Congress and Executive Branch get to rule the nation in all things, as long as the Court agrees, instead of being limited by the specific words of the United States Constitution.

This is our problem today. Jefferson’s warning has come to pass, “by little and little”,[vii] just as he said it would. He even forecast how the Court would do this, by calling foul what it was already doing in his time: “…it has proved that the power of declaring what the law is ad libitum [optional, up to the decision of the judge], by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force cannot dare to attempt.”[viii] According to the Constitution and its Framers, its words and meanings were not optional: the government, including the Court, had to follow it. But the Court decreed differently. Jefferson, and anyone who simply reads the Constitution for its original meaning, disagrees.

“Consolidation” also meant that once the Court centered power away from the states and locales and vested most of it in Washington D.C. (the opposite of the Framers’ intent), the Court would continue “consolidating” power from the Executive and Legislative branches to the Court. Again, Jefferson’s own words:

“We already see the power [of the Court]…advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions for the annihilation of constitutional state rights, and the removal of every check, every counterpoise, to the engulfing power of which themselves are to make a sovereign part.”[ix]

In short, the Court decreed itself the sovereign, the final power and highest authority in the United States—above the Legislative, above the Executive, above the States, even above the Constitution itself. If the Court gets to decide what the Constitution means and doesn’t mean, and everyone else must obey the Constitution, the Court is the crown. In this case, in fact, the Court is the only power in the nation that doesn’t have to obey the Constitution, since it can simply change what the Constitution means whenever five Justices agree.

Jefferson’s response? He warned, in strong language:

“Before the canker become inveterate, before its venom has reached so much of the body politic as to get beyond control, remedy should be applied.”[x]

And what is the “canker”, the “venom”? The nation ruled by the Court.[xi]

Clearly, Jefferson had a lot to say on the topic. After all the blood and sacrifice given by his generation, he wanted the Constitution to last, and he predicted that the flawed, and unconstitutional, use of power by the Court would eventually spell our nation’s decline. If five people can rule, some group of five eventually will exercise this power in the wrong ways—either by malice or error, as Jefferson put it.[xii] It may take a long time for this to happen, but when it does, the nation’s freedoms will be forfeit. Indeed, once such power is used, it will be used again and again.

We are on the cusp of such usage. And given the growth of partisan rancor over the decades, we now seem closer than ever before. Such a watershed event may occur while five Justices lean Right, as they do now, or at a later date when 5 lean Left. But if [when] it happens, the United States will be no longer a limited federal democratic republic; or free.

The fact that the wrong side of this debate is now being taught to nearly all law students in nearly all law schools is a serious problem. Most law students, and almost everyone else close to the legal profession, now fully adopt and promulgate the British system of jurisprudence, as applied to the United States–the very thing that Jefferson was so worried about–instead of the actual meaning of the U.S. Constitution as written by the Framers and ratified by the states and the people. The result is an internal coup, subtle but real—like Squealer in Orwell’s Animal Farm, sneaking into the barn at night and changing words in the laws that all the animals agreed upon when they were first inscribed in chalk on the barn wall. No wonder Jefferson called it “sly”, “silent”, “usurping”, “sapping” of our “foundations” toward our “destruction.”

Remember his solemn warning:

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore un-alarming, instrumentality of the Supreme Court.”[xiii]

V.

The remedy Jefferson recommended is simple: Follow the Constitution.

Specifically, as it relates to our time:

• Demand that the Court (or any lower court) stop pretending it has Constitutional authority to tell everyone what the Constitution means. The United States Constitution does not grant the Court any such authority. Read it. No such grant is found. This tradition is simply a holdover from the way English lawyers were trained; and most early American lawyers were trained in the same way. But while the English Constitution allows this, the U.S. Constitution does not. (Again, we’re referring to the U.S. Constitution as written, and ratified, along with Amendments, not as defined and redefined by the Court.)
• Citizens can read the Constitution for themselves, and see what the Constitution means. After all, the Constitution was written by the people to the government (including the judiciary), telling the government (including the Court/courts) what things it can and cannot do.
• The Supreme Court, as outlined in the Constitution, should apply the Constitution, as applicable, to all cases. Any such application must apply to that case only—it must not create a precedent (any precedent is a legislative act, which the U.S. Constitution doesn’t allow the Court). This same Constitutional limit must be binding on all courts operating under the Constitution. Again, many early American lawyers trained in the English system got this wrong by applying their English training to the United States. But where significant parts of English law promoted stare decisis, or precedent, the U.S. Constitution patently does not.
• A lower court may look to a higher court or even a Supreme Court decision and judicial dicta for wisdom; but any court decision—by any court, including the Supreme Court—must only apply to that one case. This makes it constitutional, by the Framers’ definition–the only definition that the people of the United States ever ratified.

The greatest obstacle to this change (ironic that the “change” is simply to follow the actual Constitution and Amendments) is the same in our day as it was in Jefferson’s time: Nearly all attorneys, judges, Supreme Court Justices, law professors, and legal scholars are trained almost solely in the other way of doing things—where the Court is allowed, even expected, to unconstitutionally defy the words of the Constitution and follow the now-accepted tradition of the Court acting above the Constitution. Most of them literally believe that, for all practical purposes, the Constitution means whatever the Court decides it means. Many, if not most, believe that it actually should be this way. They refer to this as the American style of jurisprudence.

If by “American” we mean the intent of the Framers who wrote the Constitution, and the people and state representatives who ratified it, nothing could be further from the truth. There is a way provided in the Constitution to amend it, to change it, and this has nothing to do with what Jefferson called the quiet “sapping and mining, slyly, and without alarm, the foundations of the Constitution”[xiv] by Court decisions, dicta, and precedent.

Remember how strongly Jefferson opposed this. He forcefully declared:

“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous [members of the government]…that their decisions, seeming to concern individual suitors [cases] only, pass silent and unheeded by the public at large; that these decisions nevertheless became the law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction, before anyone has perceived that that indivisible and helpless worm has been busily employed in consuming its substance.”[xv]

He really means this. It’s a serious problem. And Jefferson noticed the danger at its infancy. Today we face it full-grown and spread across the nation, now part of nearly every civics textbook, social studies curriculum, U.S. history lesson, college university, law school, late-night talk show, movie, television legal drama, media outlet and government branch, agency, court, and institution. The idea that the Court is above the Constitution, that in fact the Constitution is whatever the Court decides, has become part of a national myth. Yet it is both unconstitutional[xvi] to the core and antithetical to the intent of the Framers. In this much worse iteration, it presents itself to the world as fact. No debate needed. No discussion. End of story.

Five rulers.

No recourse.

What a predicament. We live now, unfortunately, in interesting times, as the old Chinese proverb warned. In truth, from the vantage point of the Framers’ intent, we experience a serious Constitutional crisis in this nation every time the Court delivers a decision that in any way assumes the Court gets to decide or alter the meaning of the Constitution. If the Framers had intended this arrangement (for the Court’s authority to include changing the Constitution in any way), they would have characteristically required a 2/3 or even a 3/4 decision by the Court on any such question, and additionally required a 2/3 or 3/4 consent by at least one other branch of government. They demanded this for amendments, and for treaties, both of which they knew could change the Constitutional law of the land. But they didn’t require anything like this in Court decisions, simply because such decisions were only designed to apply to one case, never intended to legislate by precedent—itself a major unconstitutional change to the Constitution.

Had judicial defining and redefining of the Constitution, or creating legislation by precedent, been the intent of the Framers, all the founding commentary about amending the Constitution would apply. Federalist Papers 39 and 85 are among the best explanations of what is needed to amend the Constitution, and why, and what should be considered in any amendment process, or anything else that changes the Constitution—yet these documents wholly ignore Supreme Court decisions. Why? Again: Because any Court decision was, according to the Constitution, and the Framers, applicable only to a given case—creating no precedent whatsoever.

VI.

As far as I can tell, this leaves us three options. I would be very interested to consider others that readers come up with, or find, but these are the three I can currently conceive.

Option One: End the practice of judicial precedent. This immediately puts decisions about core values back in the hands of the voters. The Court will no longer legislate. The fear of 5-person rule will disappear.

The courts will become a more powerful line of defense for the accused, a place where someone who believes the laws are bad [or don’t apply] in a given case, and that true justice will take this into account in their specific case, can turn for remedy with more efficacy. The courts will also stand once again for the actual Constitution (not the ad libitum version of it they make up as they go), holding other branches and all levels of government to its standard—not whatever they can “mine” from history, individual views, or any other source.

Again, this was the original intent of the Framers. On a practical level, of course, this is a major shift. Every law school would have to be entirely revamped, and every practicing lawyer and legal thinker would need to scrap much of what they’ve learned and refocus their legal knowledge in a whole different direction. Every citizen, potential juror, would also need a new education on freedom. A good change to our society, no doubt. But far from easy.

Option Two: If we can’t—or choose not to—end the practice of legislation by judicial precedent, which (as mentioned) is really an alternative legislative power that largely skirts the voting electorate, we will need to amend the Constitution to include the kinds of checks and balances the Framers always required to change the Constitution. Specifically, on any Court decision that redefines, in any way, the meaning or scope of the Constitution and Amendments from their original meaning, the Court will need to decide by a 3/4 majority, and receive the consent of either 2/3 of Congress or 2/3 of State Legislatures, or both. The numbers could be flipped, meaning Court decision by 2/3 with the consent of 3/4 of state legislatures and/or 3/4 of Congress (or, if not these precise arrangements, something similar).

These are high marks, to be sure; but they are exactly the standard the Framers required for any actual, lasting change to the Constitution. The other kind of change to the Constitution, from treaties, demanded similar arrangements, as outlined in Article II, Section 2 of the U.S. Constitution. If the Court is going to be allowed to change the Constitution and meanings of words or phrases in the Constitution by precedent, or infer meanings as it chooses, the Framers would demand such changes/amendments to meet at least the same standard—and we as their inheritors should accept no less.

Option Three: If we don’t fix the problem, we will, as Jefferson forecast, see a major decline in freedom and eventually lose our Constitutional system. Rule by five individuals in black robes is much closer to full implementation right now than in Jefferson’s time; and under the current system, given this flaw in the way the Court is allowed to behave, it will inevitably come—unless we address this and make changes. Make no mistake, unless changed this will ruin the entire system, and our entire nation.

The sad part of this all seems to be that, given human nature, when the Left had a majority on the Court, it was content with the system that favored its views; more recently the Right has discovered the same type of comfort with a Right-leaning majority on the Court. Eventually, however, this system will not hold. Government power always tries to centralize, and then expand and dominate. It has already centralized to the Court and those it holds close as allies. No limits, checks, or balances stand in the Court’s path to the crown. Sovereignty has already consolidated from the people and states to Washington, where it has been rapidly expanding for decades.

Now, 5 Rulers need only exert their power. History proves that, unless this power is limited, or at least effectively checked and balanced, it will eventually be used in ways detrimental to all. Unless something changes in this model, the corrupt execution of this power is inevitable.

*To learn the 3 specific, effective things we as citizens can do about this issue, that will really make a difference, read FreedomShift by Oliver DeMille—available here >>

NOTES

[i] Collected Writings of Thomas Jefferson, Bergh, vol 15, p 241.

[ii] Ibid., p 486.

[iii] Ibid., p 241.

[iv] Ibid., vol 16, p 113.

[v] Ibid.

[vi] Ibid., vol 15, p 31.

[vii] Ibid., vol 15, p 486.

[viii] Ibid., vol 16, p 113.

[ix] Ibid., vol. 15, p 355.

[x] Ibid.

[xi] Ibid.

[xii] See ibid., vol 1, p 120.

[xiii] Ibid., vol 15, p 241.

[xiv] Ibid., vol 16, p 113.

[xv] Ibid., vol 15, p 486, emphasis added.

[xvi] The original meaning of “unconstitutional”, not the “new” definition of “unconstitutional” self-servingly adopted by the Court.

Category : Aristocracy &Blog &Citizenship &Community &Constitution &Culture &Current Events &Education &Generations &Government &History &Independents &Leadership &Liberty &Politics

Jefferson-Madison Debates: Mobs, Mobs, Everywhere

October 24th, 2018 // 7:31 pm @ Oliver DeMille

Rising Emotions, Rising Problems

What Next?

I recently read a very thought-provoking article on this topic, and I recommend it for all Madison-Jefferson Debate readers. If you’re like me, you won’t agree with everything you read in it, but you’ll agree with some, and it is full of ideas that are poignant and timely. The article is in the October 2018 issue of The Atlantic: “James Madison vs. the Mob”, by Jeffrey Rosen.

Enjoy the read. And ponder, debate, and think about this. It’s a true sign of our times…

https://www.theatlantic.com/magazine/archive/2018/10/james-madison-mob-rule/568351/

Category : Blog &Citizenship &Community &Constitution &Culture &Current Events &Economics &Education &Featured &Generations &Government &History &Independents &Information Age &Leadership &Liberty &Politics &Postmodernism

Jefferson-Madison Debates: A Week of Socialism

August 21st, 2018 // 2:21 pm @ Oliver DeMille

The Media of Our Time

This week I read five books, and one of them was an easy, enjoyable novel—a western entitled Flint that I’ve read and reread several times. Surprisingly, it was the western that first got me thinking about socialism. It contains a classic East Coast vs. Wild West milieu, where the main character experiences and ultimately chooses the fiercely independent lifestyle of the West over the more “socialized” culture of New York and New England. When I read the other four books they kept challenging my mind with similar themes—the kind that woke me up in the night numerous times with “new” thoughts that somehow refused to wait for morning. Fortunately, I keep a notebook on the nightstand for just such events.

Watching and reading the news added to this mental battle, since socialism is making a serious comeback right now in some corners of American politics. But mostly my thoughts centered on the books themselves. The first one after the western got the ball rolling because it openly promotes socialism, the cooperative type that focuses more on economics and culture than politics. It really made me think, because it skipped theory and emphasized current actions. Sobering.

Then I kept reading, and all the books were deep—nothing to skim. Every word was important; every sentence and paragraph deserved consideration.

By the time I finished the last book, I had a lot of ideas bouncing around in my head. As mentioned, the first book was about cooperatives as a replacement for corporate greed—putting “democracy” back in the business world, as the author put it, and a second offered a detailed history of the Supreme Court’s impact on American public education (and its governmental/legal influence on non-public education as well). There are a lot of socialist ties in education, sadly.

The third book amounted to a warning. China is growing—in power, wealth, and global ambition. We seldom hear much in the media about the major China threat, even though it is increasing at a staggering pace. Xi Jinping has centralized power within the People’s Republic of China to a level unprecedented since Mao (some would say with more power than Mao, given China’s huge economy and global reach). China’s plans for the decade ahead are remaking the globe. Yet, again, this is a topic hardly discussed in current America. Both communism and socialism refuse to die or go away; in some ways they are powerfully ascendant right now.

Finally, the last book, really just excerpts from a book that hasn’t yet been fully released, shares Aleksandr Solzhenitsyn’s thoughts about his famous 1978 speech at Harvard. If you’ve ever read A World Split Apart (the Harvard speech), you know it is important, and incredibly powerful. Every idea is profound, and unexpected. The excerpts from his new collection, to be published in late 2018, are equally compelling. In 1978 his words seemed a lot more anti-capitalist than anti-communist or even anti-socialist, but today I kept noticing the way his commentaries on America’s mainstream media crisply poke holes in an industry that has arguably become the world’s leading apologist for socialism. Deep. And this historical trend from 1978 has now become a tidal wave.

Following are my notes and main conclusions on these four books. I think they’re worth considering. There is a lot of important information packed into this article. If you give these ideas a chance, I think they’ll help you think even more deeply—and I hope more wisely as well—about our current events and challenges. It seems increasingly true that in our age of rampantly-partisan media, books frequently tell us more about events than the nightly news. It may be that a return to books (even more than the growth of the Internet) is the actual “new media” of our time. So much of what calls itself media today isn’t journalism at all, but just entertainment for the two major political parties, or worse, strident muckraking. Here goes…

Book One

Everything for Everyone (by Nathan Schneider)

• 5 Stars for Importance

• 2 Stars for Promoting Freedom

• 4 Stars for Fun

Theme: Like it or Not, Socialism by Any Other Name is Still Socialism (But Capitalism is Either Really Bad or Really Good, Depending…)

The Problem, as described in Everything for Everyone, is that modern capitalism has become an enemy to democracy and culture. The book refers to the American economy as “A new feudalism on the rise” where “monopolistic corporations feed their spoils to the rich [while] more and more of us are expected to live gig to gig.” It traces the history of the idea that the best societies exist where the people share “all things in common”, from medieval monasteries and guilds to modern urban taxi cooperatives taking on Uber, from “freespace” supporters in San Francisco to online platforms, and numerous other examples.

The Solution, according to this book, is the spread cooperatives, groups democratically run by cooperating people—not dominating corporations controlled by a hierarchy of the elite few. Based on the marketing copy, the book appeared to promote an extremist utopia for utopians, which coincides nicely with the increasing popularity of socialism in the Democratic Party. The subtitle (“The Radical Tradition that Is Shaping the Next Economy”) predicts that this Solution is the clear way forward, our best path to a better future. And the author’s most recent book before this one, entitled Thank You, Anarchy: Notes from the Occupy Apocalypse, seems to reinforce this impression. But Everything for Everyone is a lot deeper than it seemed to me at first glance.

Indeed, as I read, I found myself marking numerous sentences, paragraphs, and quotes for future reference. The book is a treasure-trove of thinking on modern problems—clearly coming from a place Left of Center, but not patently anti-capitalist. Again, given the marketing copy, this surprised me. For example, while promoting the virtues of cooperation in very progressive-sounding language, the author also wrote: “Does cooperation count as capitalism, or something else?… If capitalism means freely associating in the economy, or ingenuity and innovation, or the rough-and-tumble of setting up a business, or price-based reasoning—then yes, cooperation overlaps with it. But if capitalism means a system in which the pursuit of profit for investors is the overriding concern, cooperation is an intrusion.”

To be clear, the term “capitalism” is often used in different ways by different people, and has evolved over time. Free Enterprise Capitalism (which promotes “freely associating in the economy… ingenuity and innovation… the rough-and-tumble of setting up a business…”) is not the same thing as Crony Capitalism or what is sometimes termed “Corporate Capitalism”—where institutions with capital are treated differently by government, law, and the commercial code. In Free Enterprise Capitalism, all people and institutions are treated equally by the law; in Corporate/Crony Capitalism the rich are given special legal and financial benefits. In my view, the real negative isn’t what Schneider calls “the pursuit of profit as the overriding concern”, but rather these special legal benefits that are both undemocratic and elitist, and also undermine Free Enterprise.

Overall, I consider this book a great read about our modern world. On the one hand, I heartily agree with its warning against the increasing dangers of government-by-corporate-powers, the Military-Industrial-Complex in its newest form, sometimes called The Black Box Society (another excellent book) or Government by Corporate Algorithm, Crony/Corporate Capitalism, or simply Elitism. The idea that economic progress must be a top-down process controlled by elites—while most people struggle paycheck to paycheck—is the source of many of our modern problems. More people on the Right need to understand and accept this challenge, because it’s real.

At the same time, I have mixed feelings about many of the proposed solutions in Everything for Everyone. Just like capitalism can adopt the empowering Free Enterprise approach or succumb to the controlling Crony/Corporate/Elitist model of capitalism, cooperative organizations and co-ops can be either freedom-supporting grassroots enterprises (which require a free economy if they want to flourish) or force-based. Where the author encourages the first, I like it. When the book promotes the second, not so much.

From the book: “What would it take so that a can-do group of pioneers—people with a need to meet or an idea to share with the world—might conclude that the best, easiest way to build their business is by practicing democracy?” Again, these words seem to lean toward freedom, and certainly the idea of more entrepreneurs and owners in our business structures is appealing. Even necessary, I think. But how easily does this approach turn into force-based controls? Is this joint-ownership system built on contract and market forces, or does it depend upon or even promote government forced “cooperation”? Both iterations will likely be applied.

The reality is that democracy is hard. The reason we use it in government is that government itself is force, and without a healthy dose of official voting power vested in the regular citizens, government will always be dominated by some group of elites—who seldom give the people any real equality (despite promises) or treat the people with respect, or allow any true freedom. And, secondly, the best governments, the free ones, check and balance democratic parts of government with branches that are aristocratic (e.g. Senate), appointed (e.g. Executive), and even appointed by the appointers (e.g. Judiciary).

This has been a long-established reality, even before Aristotle openly pointed it out. In the American arrangement of this model, the Framers made sure democracy had the final say (mostly through the power of the purse held by the democratically-elected House of Representatives), but not the entire say. Such a democratic republic is democratic, yes, but it’s not a pure democracy.

Thus, if most good democratic republics, where democracy has the final say through the purse strings, end up losing their freedoms to aristos and elites (and they do, as Madison pointed out in The Federalist), how much more quickly will this decline occur in democratic cooperatives? On a side note, as I read Everything for Everyone, I kept thinking of another book, similar in some very important ways, entitled Beyond Capitalism and Socialism, edited by Tobias J. Lanz. These two books are worth reading together, comparing and contrasting. Also throw into this conversation the book Give People Money, by Annie Lowry, which I reviewed earlier this year.

Finally, in addition to the important ways Everything for Everyone contributes to the discussion of where we want our economy to go, it is also a valuable book on current politics. For those on the Left, it shares a number of ways people are trying to seek a better economic model for the future—real people, doing real projects. Not just theory, which is often the Achilles heel of proposals from the Left. This provides the most value in the book, in my opinion. For those on the Right, this book strips away many of the stereotypes and misconceptions about the modern Left (the mainstream media version), and will help conservatives and independents understand more deeply what many on the Left are really about. Understanding this is important for everyone.

Book Two

The Schoolhouse Gate (by Justin Driver)

• 5 Stars for Importance

• 3 Stars for Freedom

• 3 Stars for Fun

Theme #1: The Court Gets a Lot of Things Wrong (And It’s Okay to Say So Out Loud…)

Theme #2: The Court is Far Too Involved in Education (The Constitution Mostly Left this to the States, But Try Telling That to the Court…Or Congress, the White House, or Anyone Else in Washington)

First of all, I like that this book seems to take a 3-branch view of the Constitution (that the Supreme Court can be wrong, and often is, and that the Legislative and Executive branches are co-equal with the Judiciary) rather than the erroneous 1-branch view that the Court is the final and highest power in the nation. The 1-branch view is much more common in today’s world, especially in the mainstream media. Putting the topic of education aside for a moment, the 3-branch approach makes this book a rarity, one that is a must-read work for anyone interested in the modern Court. (Another book that effectively speaks from the 3-branch approach, with more specifics, is Constitutional Law by Nowak and Rotunda, Seventh Edition.)

As mentioned, The Schoolhouse Gate is laced with the idea that the Court is sometimes wrong. For example, the author says: “The Supreme Court has also stumbled…” and calls one landmark case “a Constitutionally questionable decision…” The federal Courts in general are said to make “many wrongheaded decisions…” The book is filled with such language, a refreshing approach in our time. Also, one of the best things about this book is that is written for the regular reader, not limited to a few legal scholars.

The focus of The Schoolhouse Gate—Court decisions and trends dealing with American education over time, including recent cases—is must-know information for all informed Americans. In historical scope, it reminds me of Constitutional histories by Forrest McDonald, but with more detail. Most people today don’t know the information outlined in The Schoolhouse Gate; making Driver’s book all the more important. I didn’t agree with all the book’s conclusions, but I did agree with many—and either way the book consistently caused me to think about things I had never really considered.

In my view, the Court has made a few very important decisions about education that are really good for our nation, and a number of bad decisions that aren’t. In most cases, it would be better to leave educational decisions to the states, as per the Constitution. A question that kept recurring in my mind as I read: “Is the Court approach to education rooted more in individual liberty or collectivist socialism?” The answer is far too often, though not always, the latter.

Largely as a result of this, today’s modern schools are in many cases de facto incubators of socialism—from mild to more extreme. This applies not only to elementary and high schools, but to most of higher education as well. The drive is to make schools as similar as possible, often under the guise of “equality” and a professorate made up not just largely, but almost entirely of progressives. Conservatives are a rarity in nearly all the top American institutions of higher learning. In far too many cases, conservative students are penalized for their political views—and a lot of them hide or even change their politics during their time on campus.

What happens to a society where many of the children are raised in conservative or conservative-leaning homes, educated in elementary/secondary schools that lean strongly Left, and then trained in “higher” institutions with a fundamental and passionate allegiance to the Left? In many cases the conservatism of parents and grandparents is mocked as childish, and Leftism is ultimately considered truly “higher” (meaning “better, more advanced, more correct”) learning. The “adults” and “grown ups” in such a model must, by definition, come from the Left (or, if Republican, of the progressive type). This is the fruit of thirty years of infiltration in lower schools and on campus, frequently supported and even encouraged by Court decisions.

Book Three

The Third Revolution: Xi Jinping and the New Chinese State

(by Elizabeth C. Economy)

• 5 Stars for Importance
• 4 Stars for Freedom
• 3 Stars for Fun

Theme: While the Media is Overwhelmingly Obsessed with Russia, the Threat from China is Growing at an Alarming Rate

The next ten decades belong to China, if ownership and contractual access to the world’s natural resources are any indication. Historically, these are always the best indication of what’s ahead. Yet, astoundingly, few in current America are giving this the attention it demands. The United States literally may face an existential threat from China in the decades ahead.

Elizabeth C. Economy’s book The Third Revolution makes the case that there have been three great eras in modern China: (1) the Maoist Revolution that brought communism to China, (2) the “Second Revolution” led by Deng and those who came after him, which emphasized more openness—both in China’s domestic economy and in relations with the outside world, and (3) the current “Third Revolution” which focuses on increasing the power of one leader within the nation, Xi Jinping, and boosting China to the pinnacle of power and leadership on the global stage.

Consider the following quotes from Economy’s book:

“The ultimate objective of Xi’s revolution is his Chinese Dream—the rejuvenation of the great Chinese nation…. Xi’s predecessors shared this goal as well. What makes Xi’s revolution distinctive is the strategy he has pursued: [1] the dramatic centralization of authority under his personal leadership; [2] the intensified penetration of society by the state; [3] the creation of a virtual wall of regulations and restrictions that more tightly controls the flow of ideas, culture, and capital into and out of the country; and [4] the significant projection of Chinese power.”

“It represents a reassertion of the state in Chinese political and economic life at home, and a more ambitious and expansive role for China abroad.”

“Unlike his immediate predecessors, he has assumed control of all the most important leading committees and commissions that oversee government policy; demanded pledges of personal loyalty from military and party leaders; eliminated political rivals through a sweeping anticorruption campaign…. [A]dvocates for change or those who seek a greater voice in political life, such as women, labor, or legal rights activists, increasingly risk detention or prison.”

This new approach goes well beyond international economic expansion. For example, as Economy shows, since 2014 Xi’s government has driven “massive land reclamation and militarization of the islands in the South China Sea…. He has established China’s first overseas military logistics base; taken significant [steps to increase]…strategic ports in Europe and Asia; championed China as a leader in addressing global challenges, such as climate change [with China’s largest competitor, the United States, largely footing the bill]; and proposed a number of new trade and security institutions [and a PRC-dominated world reserve currency to replace the U.S. dollar]. Xi seeks to project power in dramatic new ways and reassert the centrality of China on the global stage.”

Note that all of these initiatives and changes began during the Obama era, while the United States struggled in the aftermath of the Great Recession. The economic rebound of the United States, beginning in 2017 and corresponding with a more aggressive foreign policy under the Trump Administration, has changed the dynamic of Chinese-American relations, but China hasn’t changed its trajectory.

Economy points out the drastic significance of the situation:

1. “[A]ll the major economies of the world, save China, are democracies.”
2. “China is an illiberal state seeking leadership in a liberal world order.”

I consider this one of the most important books of our time. As I’ve said about the other books reviewed here, it is a must-read for anyone who cares about America. And the future of the world, for that matter. It’s that significant.

Economy’s proposed policies and solutions are particularly interesting. Whether you agree with them, or part of them, or disagree, they bring up topics that demand a lot more consideration and discussion by regular Americans. If we don’t engage such conversations, we leave public policy and national direction to a few experts in academia, think tanks, media, and government. This is hardly the American way, though it has dangerously become the norm in many policy debates during recent decades.

An example of Economy’s suggestions is the need to recognize the influence that China now has on American campuses, and how important it is for Americans to learn what is occurring. She wrote: “China under Xi Jinping also seeks to influence the domestic politics of other countries as those politics relate to China. The Chinese government mobilizes students and other citizens living abroad to represent the interests of the Chinese government by, for example, spying on other Chinese students, denouncing professors who offer contrarian opinions [isn’t the purpose of universities in a free society to allow open discussion of differing ideas?], and protesting against invited speakers who criticize China.”

In reality, the media obsession with Russian influence on American elections is ironic given the sheer scope and scale of China’s much bigger presence and influence—not just in the U.S. but also in Europe and around the world. This mirrors the general silence about China (again: the world’s second largest economy, which now rivals the U.S. economy) and daily onslaught of commentary on Russia meddling (the same Russia whose economy is only about half the size of the economy of California). American citizens need more perspective on what’s really happening.

As Economy recommends to the Trump Administration: “… the United States can gain leverage in negotiations with China by understanding domestic dynamics within the country around particular issues.” The interest of Chinese citizens in the English language and American culture, politics, business and society dwarfs the level of American interest or focus on anything Chinese. Our lack of seriousness in this respect is dangerous.

Whether the future will actually be dominated by China remains to be seen. But it is certainly a real possibility, and we are right now on track to see this outcome. If it occurs, it could very well spell disaster for freedom.

Book Four

Between Two Millstones, Book I (by Aleksandr Solzhenitsyn, Peter Constantine)

• 5 Stars for Importance

• 5 Stars for Promoting Freedom

• 5 Stars for Fun

Theme: Just Read It—It’s Awesome

When Solzhenitsyn spoke at Harvard in 1978, he caused a firestorm of media criticism. Many expected him to describe the weaknesses and evils of communism, and show the many ways America and the West are better—as he had done in earlier speeches. But at Harvard he targeted a different problem: the systemic flaws and mistakes of Western Civilization, especially in the United States. He attacked the way we do business, our legal system, our colleges and universities, our culture (or more accurately, the ways we lack culture), and above all our modern media.

Decades later, in Between Two Millstones, we get to read and think about his critique of how his speech was received, and why it matters. This provides one of the most poignant descriptions of modern media available. If you haven’t read his speech, published as A World Split Apart, it’s worth studying before you read Two Millstones. Together they provide a powerful commentary, one we should all engage and consider.

Specifically, concerning what we today call the mainstream media, Solzhenitsyn points out that our roots are muddled: “Western society is based on a legal level that is far lower than the true moral yardstick…” Because of this, he argues, we tend to consider something good as long as it is legal, and we usually apply this to all parts of society, including business, family, education, media, etc. Thus media can say whatever it wants, as long as it is legal. Indeed, media doesn’t have to stand for truth, or accuracy, as long as what it says is legal by the letter of the law.

The result is a major power grab, albeit a somewhat subtle one. Solzhenitsyn wrote: “And above all, the press, not elected by anyone, acts high-mindedly and has amassed more power than the legislative, executive, or judicial power.”

This should make every American stop and think deeply. It didn’t quite reach everyone in 1978, but it is still relevant.

He continued: “And in this free press itself, it is not true freedom of opinion that dominates, but the dictates of the political fashion of the moment, which leads to a surprising uniformity of opinion.” He points out that this is the thing that “irritated” the mainstream media the most about his speech. Claiming to be champions of diversity and open thinking, the media is often the enemy of both.

Here are some of the bad habits and underhanded tactics of the mainstream media, as suggested by Solzhenitsyn:

• They “completely” missed the things Solzhenitsyn thought were important about the speech, the very things the speech was actually about, and focused on their own agenda—misrepresenting and tangentially citing his message in order to make it fit their narrative so they could attack it. He called this “a remarkable skill of the media”.
• “They…invented things that simply did not exist in my speech”.
• They “prepared their responses in advance”, and focused their commentary not on what he actually said but on their plans to discount what they anticipated he would say—ready to pounce and then twisting phrases and words to make connections with their pre-designed rebuttals.
• They didn’t just misreport the facts, but in addition “the press spouted scalding invective…” They did this without telling the populace that these were just the opinions of the reporters; instead they acted as if their “invective” and anger were objective and wise. Even true. In reality it was only their opinion, and frequently differed from the facts and what he actually said in the speech.
• Overall the media tends to reject and attack those who criticize them, and reward only those who “flatter” them.

Of course, he expected the mainstream media to disagree with him. After all, he frequently and openly accused the media of many mistakes, including “stuffing” the people’s “souls…with gossip, nonsense, vain talk.” They naturally pushed back.

What did surprise him is what happened in another part of America, away from the centers of power. Solzhenitsyn wrote:

“…one could also begin to read many responses that were markedly distinguished from the arrogant stance of the America of New York and Washington… Gradually another America began unfolding before my eyes, one that was small-town and robust, the heartland, the America I had envisioned…. I now felt a glimmer of hope…”

From the local and non-mainstream media he heard such responses as:

• “We know in our hearts he is right…”
• “His speech ought to be burned into America’s heart. But instead of being read, it was killed” by the mainstream media.
• “Can the press maintain diversity when ultimate control [of the media] rests in the hands of a small group of corporate executives?”

The two Americas were already a reality in 1978. But, like always, the mainstream media paid little heed to the media of “the heartland” or the views of non-elite Americans. To get the real story on things, people will apparently have to see past the mainstream media and find more truthful and more, well… journalistic… sources—and concerning his speeches and books, nothing is better than the original words of Solzhenitsyn himself.

From what I can tell from the early excerpts that are available to read, Between Two Millstones will be a great book, an important read, and one that will make every reader think and rethink. To be published in late 2018, forty years after the Harvard speech, it should be read by everyone who cares about our society and its future.

Conclusion

My stroll through these four books this week (five, if you count the western), with their recurring theme of socialism, from various angles, has prompted me to move even further past the old view that liberalism and conservatism are the dominant political forces of our time. I am increasingly convinced that socialism is powerfully on the rise right now (both in the U.S. and around the world), and that it presents a clear and present danger to freedom.

Above all, I am more convinced than ever of just how important it is for those who care about freedom to read more and raise the awareness of what is at stake in the months and years just ahead. I think books are the true “new media”, while most mainstream news outlets and platforms are mired in non-journalistic battles to promote false narratives. This demands that we, the regular people, take action to dig a lot deeper in our own study of what’s really happening.

A few final questions:

• What important things are you reading this week and month?

• What are the “theme units” you’re finding in what you read?

• Are you writing down your thoughts?

• With whom are you sharing what you are learning?

Category : Aristocracy &Blog &Book Reviews &Business &Citizenship &Community &Constitution &Culture &Current Events &Economics &Education &Foreign Affairs &Generations &Government &History &Information Age &Leadership &Liberty &Politics

The Madison-Jefferson Debates: What Isn’t True

August 7th, 2018 // 1:22 pm @ Oliver DeMille

Reality or… Not?

Some things just aren’t true, even if we think they are. Even if we are assured that “everyone” says they’re true; and even if the experts—almost always unnamed—have formed a consensus on the matter. Actually, the more you get know the experts, the more you realize they aren’t in consensus on almost anything.

Now, let’s be clear. A lot of what we’re told is true. But not everything. And that’s why sometimes it’s important to take a step back and really dig into things. Research. Find out. There are whole websites dedicated to setting the record straight about urban myths, generally accepted “truths”, quotes that are attributed to someone who never said those words, etc. We give “Pinocchios” to politicians who fib, and “Fact Checker” is a growing career field in the Information Age. (Is it really? Or does it just seem like it? Ask the question on Google and you can spend hours studying the various listings. Or ask the same question on social media and wade through hundreds, or even thousands, of opinions.)

Falling for Everything

Here are few items that most people consider truth. Unassailable. Set in stone. Incontrovertible.

• Lie Detector Tests
• DNA Evidence
• Election Polls
• Carbon Dating

Which are sure? Which are certain? Not all. Do you know which of these are fully accepted by the experts in the field—no exceptions? Answer: none. All of the above are rejected by at least some experts, even where a majority of experts agree. Have you studied the arguments, evidence, tests and conclusions on each? Or any? Note that even where the science is firm, like with DNA evidence for example, the way experts present such science is at times incomplete or misleading. Or, another example, even if the statistics used in a pre-election survey are accurate, the wording of a specific survey question can skew the entire result; and what if survey respondents are afraid or ashamed to tell the truth, like in the 2016 U.S. presidential election when many voters didn’t want people to know they planned to vote for Donald Trump? In such cases, the math and the science can be technically correct, but the way experts use them turn out “wrong”, because all the variables aren’t controlled.

In short, on many things we simply know less than we need to. And yet most people are comfortable making decisions based on things they know very little about—just taking someone’s word for it. It’s a habit for most people.

But things are not always what they seem. Truth isn’t always what the experts claim. This doesn’t mean that every crackpot theory questioning the experts is correct. But it does suggest that we should be independent thinkers who read the original data or studies where possible and scrutinize things for ourselves. Independent thinking is required to maintain independence. This is obvious, isn’t it? But most people don’t follow this approach.

Time to Think

For our Madison-Jefferson conversation this week, I’m recommending the attached article. It is a great read, and an important one. It demands that we look at things more deeply, and think more wisely. It calls us to research more, question more, dig deeper, and not just accept conclusions at face value. It is one of those articles everyone should read and deeply consider. Agree or disagree, this article will make you think!

Enjoy…

How Social Science Might Be Misunderstanding Conservatives >>

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Jefferson Madison Debates: John Adams on How to Fix Washington D.C. in 1791 and 2018

June 28th, 2018 // 7:26 pm @ Oliver DeMille

“Odd, that so many should favor frames that seemed to be trying to outdo the art they held.”

~Brandon Sanderson, The Alloy of Law

What You Think You See

In the old American West, a façade town featured two- and sometimes three-story buildings lining Main Street, so visitors to the town would be impressed with how up-and-coming the community must be.

But when a person walked around to the side and back of the buildings, it turns out they’d find mostly one-story structures—sometimes little better than shacks or huts.

A few were even a façade built on the front of a rickety lean-to.

Some were respectable buildings, but they were usually made of adobe or pine rather than the fine hardwood edifices promised by their Main Street facades.

And, as I mentioned, they were only one story tall despite their appearance from the front.

Indeed, the only purpose of the two- or three-story façade was to impress.

In modern times, the idea that perception is reality has reached the level of myth.

To Conform or Not To Conform

It is taught in various circles as unquestioned truth, parroted in movies and television programs as a lasting principle, and often used to scold would-be individualists into working harder to conform and fit in.

“We must impress others to get ahead in the world,” the common wisdom seems to assure us.

C.S. Lewis lambasted this view in his classic, “The Inner Ring.”

If you spend your life trying to impress and fit in, as almost everyone does, he warned, you’ll waste a lot of time and energy and miss many of the important things that really matter in life.

Moreover, he predicted, you’ll fail to appeal to the only real society of substance, the other people who ignore trying to impress and fit in and instead set about doing good things in the world without worrying what others think.

He called this group the true inner ring, whose motto was something along the lines of “perception is merely perception—truth, reality, integrity and quality are what matter.”

John Adams wrote about this topic in his little-known and seldom-read classic, Discourses on Davila, which may be his best book next to Defence of the Constitutions of the United States (in fact, he referred to Davila as the fourth volume of Defence).

He said that nearly every person is plagued by a debilitating desire to be esteemed by others, to impress and fit in, to be admired, and that this is the basis of many human flaws including jealousy, envy, ambition, vanity, hatred, revenge, pride, and most human pain.

These are Adams’ specific words.

Adams said this desire for admiration is as real as hunger, and the cause of more suffering, anxiety, stress and disappointment than famine.

In contrast, the really good things in life, including virtue, nobility, honor, loyalty, wisdom, service, strength and so on, may or may not increase the admiration of others, but are often valued only to the extent that they do.

Competing for Mediocrity

Sadly, many people seek these things only if, and to the degree that, they increase admiration from others.

Far too many things are sought by mankind only because they attract “attention, consideration, and congratulations…” Adams said.

Likewise, too many good and important things are not pursued by many people because they do nothing to boost one’s status or station.

By the way, the point of Adams’ book on Davila is to show that because of basic human nature—built on this inner drive of nearly all men and women to rise in station, and not just to rise, but to rise above other people—there will always be conflicts in human societies and institutions.

His solution was to create separate branches of power, and to set up the government so these branches could check and balance each other in a way that no one government entity could become too powerful.

The result, he said, would be that the people in the nation would be able to live free of overreaching government.

In the process of making this argument he spends a great deal of time showing that this drive to fit in, impress, and in fact outdo other people (by being more impressive and fitting in better than them), was a serious obstacle to human happiness in families, schools, business and all facets of society.

When people become more knowledgeable and learned, for example, they tend to engage in more, not less, conflict with other learned persons.

He was not talking of debate, but of serious conflict.

Thus our schools and great universities, which could be the salvation of society in many ways, are distracted from their potential because their leading inhabitants are constantly striving for Reputation, Notoriety, and Celebration.

These three words are those used by Adams, which he capitalized for emphasis in his book.

Likewise, Adams laments, our branches of government are unable to truly lead because those who should be our best hope for great progress immediately, upon being elected or appointed to office, set out to compete with all other officials for more Fame, Glory, Reputation and Credit.

Again, these are Adams’ words.

Growing or Shrinking

Voters send representatives, presidents and others to do their will, to improve things, but the real work of most men and women lifted to leadership is to win this contest with each other.

“Improve the Nation, or Impress the Nation. That is the question.”

And the drive to impress nearly always wins the day.

Adams wrote of humanity’s so-called honors in withering terms:

“What is it that bewitches mankind to marks and signs? A ribbon? a garter? a star? a golden key? a marshall’s staff? or a white hickory stick?”

He is mocking us now.

“Though there is in such frivolities as these neither profit nor pleasure, nor anything amiable, estimable, or respectable, yet experience teaches us, in every country of the world, they attract the attention of mankind more than…learning, virtue, or religion.”

Furthermore, Adams continues, they are sought by the poor, who believe such honors will lift them to equal status with the rich, and they are sought by the rich, who believe that without these symbols they will be lowered to the status of the poor.

This is the great challenge of human progress—we ignore our great potential to focus on silly attempts to impress.

We do it as children, as youth, as adults, and in old age.

The solution, in the case of academia, is to closely avoid putting scholars or administrators in charge of education, but leave oversight to the parents.

For government, the fix is to allow the people to frequently replace their officials at the election booth—to remove them as soon as they forget to do what the people sent them for.

Symbol Above Currency

Adams points out that ribbons, medals, titles, and other symbols of man’s honor, including the white hickory sticks of certain secret societies, aren’t of much use in real life.

Though, if you are freezing, the hickory stick can at least be ignited and bring some warmth.

But these ornaments are nevertheless widely sought because they are symbols of acceptance, fitting in, and impressing others.

Such symbols show that, in fact, the Status Motive is even stronger in humanity than the Profit Motive.

Indeed, giving war heroes and others who accomplish great acts of heroism large sums of money, cars, vacations or estates would be seen as crass by most modern eyes.

Yet these are exactly what many of the ancients gave their champions and heroes, though chariots and carriages were more in vogue than cars.

We give symbols for the highest achievements, precisely because their lack of monetary value communicates just how highly we esteem them—far above money.

For Adams, the honors and symbols are frivolities only because we seek the honors and symbols rather than the actions for which they are awarded.

This is deep insight into human nature, because for true heroes the ribbons and medals mean much less than simply knowing what they did.

Flattery and Failure

It is wonderful to honor heroic acts that truly merit our admiration and thanks, but too often, as Adams puts it, the “great majority trouble themselves little about merit, but apply themselves to seek for honor…”

This is a serious indictment.

He further says that most people try to gain such honors not by going out and serving in ways that merit them.

Such service would be too difficult, or dangerous, or risky.

Besides, just meriting great honors doesn’t ensure that one will receive them.

After all, we are assured, “perception is reality”.

So many people decide that a much better course is to ensure the world’s admiration the old-fashioned way, by directly seeking prestige and hiring publicists, PR firms, and commissioning scholarly studies and the support of experts.

Adams says it this way:

“…by displaying their taste and address, their wealth and magnificence, their ancient parchments, pictures, and statues, and the virtues of their ancestors; and if these fail, as they seldom have done, they have recourse to artifice, dissimulation, hypocrisy, flattery, empiricism…”

But this is more than an interesting philosophical discussion about human nature.

It actually cuts to the very heart of reality.

Because of our thirst for honors, and because façade honors are easier to obtain, all our manmade institutions eventually fail.

Adams mourns that government cannot solve the problems of humanity, nor will institutions of commerce and business.

Plague of Power

Families and churches come the closest, but even here we spend the generations warring about whether husband or wife should be the head, how long fathers should maintain dominance over their sons, and whether newly married couples now report to paternal or maternal grandfathers.

Likewise, too many churches in history took up arms against unbelievers, and various religions and secular groups resort to violence when they fail to convince in other ways.

Indeed, as soon as men create institutions of any kind, they usually begin to war—within the institution and/or with other institutions.

The solutions, the real fixes to our challenges, Adams teaches, will not come from manmade institutions.

We should set up the best institutions possible, but we can’t rely on them for everything because man’s hunger for approval and applause is always at work undermining progress.

Adams quotes the English poets to make his point:

“The love of praise, howe’er conceal’d by art,
Reigns, more or less, and glows, in every human heart;”
—Edward Young

“All our power is sick.”
—William Shakespeare

If “All our power is sick”, indeed. If so, how can mankind progress?

It turns out there is a solution, and Adams is excited to share it.

Building Greatness

In the cases of family, church, relationships and business, one should simply dedicate one’s life and efforts to truly serving in genuine, if challenging, ways that really make a positive difference.

This was also recommended by C.S. Lewis, who said to ignore trying to impress and instead set out to genuinely serve.

Both Adams and Lewis note that such service is only authentic when we give up concern about getting the credit.

But Adams wants our political leaders to do the same.

He sees real government leadership as deep, committed service, devoid of seeking credit or reward.

He doubts that many will truly forget their drive to impress and seek only to frankly serve, but he holds out hope that a few will rise to such heights of true leadership.

The best honors for such exceptionally great leaders aren’t the praise or baubles of men but the highest of all tributes—emulation.

And in this Adams gives us mankind’s solution to its biggest challenges.

Specifically, while mankind limits itself from great achievements to fight the petty battles of impressing others, becoming more impressive than others, fitting in, and fitting in better than others, the solution is to emulate those who do it better.

What Leadership Is

Parents who emulate great parents are the hope of the world, as are great teachers, inventors, artists, statesmen, leaders, entrepreneurs and others who emulate the greats.

Emulation includes improving upon the best of the past, and as generations of parents and other leaders emulate the best and improve upon it, the world drastically improves.

This, as Adams puts it, is a desire not to impress and fit in, “but to excel,” and “it is so natural a movement of the human heart that, wherever men are to be found … we see its effects.”

Moreover, Adams assures us, it blesses communities and society as much as it helps individuals succeed.

For those who are religious, nothing is more effective than trying to emulate the Son of God, the great prophets, Buddha, and other examples of charity, service and wisdom.

We fall short in many ways, but in trying to answer the question, “What Would Jesus Do?,” as the modern saying goes, we reach for our very best.

Our greatest heroes, regardless of our views on religion, should be the great men and women of history whose sacrifice and greatness makes them most worthy of emulation.

Emulation is as strong an emotion as seeking admiration, and in fact most children learn emulation first.

Which brings us to the topic of this article—How to fix Washington and put America back on track as a standard for freedom, opportunity and goodness in the world.

According to John Adams (and C.S. Lewis, Alexander Solzhenitsyn, and many others), the answer is not to turn to leadership from our big institutions, even if they have as much power as the White House, Congress, Wall Street, Hollywood, Silicon Valley, the Justice Department, the Federal Reserve or even the Supreme Court and Madison Avenue.

The solution lies in leadership, but not from the top down.

We will not get back on track as a society until we lead from below, until we become a society of leaders, and the right kind of emulation is our most powerful means of lasting influence and change.

Who you and I choose to emulate—really, truly, deeply, fully—will determine the future.

Becoming Our Future

It is the most powerful symbol, because who we want to be like on the greatest days of our lives will color the rest of our time on earth.

But it is much more than a symbol.

Too much of modern life is merely a façade.

Too many of our institutions are hollow shells of what we need them to be—and of what they claim to be.

Too often we choose the path of prestige over the path of quality.

Too frequently we listen to the credible rather than the wise.

Too many of our hours and days are spent on the things that are least important.

It was Nietzsche, I think, who said that modernism began when we started substituting the morning paper for our morning prayers.

Allan Bloom called this the closing of the American mind.

Adams told us that such things are hollow, but in the Information Age the voice of understanding is too frequently drowned out by the roar of the crowd.

In all this, however, there is an anchor.

Who we decide to emulate, and how faithfully we do so, will make the future.

And that goes for Washington as well.

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