A possible cure for what ails America.

Several months ago I published “A More Perfect Constitution”. Its language in many places is directed at abuses that have arisen in America’s governance. Because of its daunting length, I suspect that few readers have digested it whole, and that even fewer reader have been taken notice of the many places in which the document strives to undo the damage that has been done to Americans’ liberties. This series of posts highlights that language in bite-size chunks. Links to all excerpts are given at the end of this post.

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V. OBLIGATIONS AND POWERS OF THE GOVERNMENT OF THE UNITED STATES

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B. Specific Powers of Congress

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4. Congress may not:

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b. sustain or make laws that result in the imposition of costs on the government of any State or the governments of all of them;

c. either directly, through the empowerment of a regulatory agency, or as an incidental effect of legislation determine what goods and services are exchanged in intra-State, inter-State, or international commerce (except to regulate the international flow of weapons, military technology, or information that might compromise national security), or determine how such goods and services are produced or priced; or determine how businesses so engaged are operated;

d. levy taxes or duties on exports from or imports to any State, give any preference to one State over another in its regulation of commerce, or determine the routes of commerce between the States; …

f. except pursuant to an authorization of war, appropriate any monies for the use of foreign nations or peoples….

h. make any law whose direct effect is to establish, support, favor, bestow financial benefits on, or restrict the privileges of a particular person or class of persons, business or class of businesses, or other private institution or class of private institutions;

i. make any law whose direct or indirect effect is to provide old-age, survivors’, disability, or medical benefits to any person, except that Congress may by law provide pension and medical benefits for members and former members of the armed forces of the United States, and pension benefits for civilian employees of the government of the United States;

j. sustain for more than ten years after the ratification of this Constitution any extant programs that provide old-age, survivors’, disability, or medical benefits not contemplated in the preceding clause;

j. authorize or allow any agency of the government of the United States effectively to exercise legislative or judicial power on its behalf;

k. authorize any agency to act independently of one of the three branches of government established by this Constitution; or

k. make any law or appropriation or take any other action that contravenes any part of this Constitution.

5. Treaties

a. The Senate must ratify all treaties and agreements with foreign nations and international organizations, except those agreements that the President is by law empowered to execute pursuant to a ratified treaty.

b. The Senate may not ratify any treaty that directly or indirectly places the United States, its territories or possessions, its property, its citizens, or its armed forces under the jurisdiction or control of any foreign power or international organization.

c. The Senate may not ratify any treaty that contravenes any provision of this Constitution or any constitutional law previously enacted by Congress.

7. Acts of Congress may be revised or revoked as provided in Articles VII, VIII, and IX of this Constitution. [Stay tuned.]

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Excerpt 1, from Article II: CITIZENSHIP, VOTING, AND RELIGIOUS TESTS FOR OFFICE

Excerpt 2, from Article III: RIGHTS AND PRIVILEGES OF CITIZENS

Why not?

“Don’t change horses midstream”, an adage attributed to Abraham Lincoln, means (inter alia) stick with the incumbent president during times of turmoil and conflict.

If the present conflict in Gaza leads to a wider war, with heavy involvement by the U.S. and (possibly) attacks on Americans in their homeland, the pro-Biden (or Harris) chorus will sing rousing renditions of “don’t change horses midstream”.

But why would Americans want to stick with an incumbent (or his eager alto) who got us into the mess in the first place by displaying weakness at every turn: bugging out disgracefully from Afghanistan, failing to protect America’s southern border, playing footsie with China (under the table), shoveling billions at the Taliban, shoveling more billions at Iran, throwing more billions at Ukraine instead of building America’s own defense forces, and weakening America’s economic and industrial base in the Quixotic battle against “climate change”?

Leftists, being anti-American, love those things. Let’s hope that a sizable fraction of American voters see them for what they are: weakness in the face of our enemies.

Changing horses midstream would be just the start of a much-needed reversal of America’s economic and security prospects.

Victimology on steroids.

I will get around to Israel in due course. But I need to set the stage with an excursion into grade-school arithmetic.

Do you remember learning how to work with fractions? To add, subtract, multiply, or divide fractional numbers with different denominators, it is necessary to convert each number to a common denominator (mentally if not mechanically). A simple example is the addition of 1/8 and 1/4. Because 1/4 = 2/8, the lowest common denominator is an eighth, which is lower than a fourth. So, by the rule of the lowest common denominator (LCD), the addition of 1/8 and 1/4 becomes the addition of 1/8 and 2/8, which yields 3/8.

In the classroom, before AP courses were devised, the pace of teaching was influenced by the pupils who were slower at learning a subject. The practice was known (unofficially) as catering to the LCD. The pace of teaching was tailored to the less-bright students (eighths) instead of brighter students (fourths).

AP courses are under attack (and have been discontinued in some places) because the placement of pupils in them is a form of discrimination — discrimination of the kind that is based on merit, not racial or ethnic prejudice. But because blacks on average are considerably less intelligent than whites (especially Jews) and East Asians, blacks tend to be left behind in educational endeavors. This, of course, is “unfair”, “discriminatory”, and “racist” — and it flies in the face of “equity”.

The attainment of “equity” therefore requires the removal of badges of superiority and occasions in which blacks might feel inferior to whites, etc. So out with AP courses; out with SAT and GRE scores as criteria for admissions to undergraduate and graduate programs: in with blatant pro-black discrimination in admissions; in with segregated housing and black-only events and programs; and out with meaningful grades (pass-fail is an old solution; “A” is becoming the new normal where grades are still used).

“Equity” is a way of catering to the LCD, with a twist. The twist is that “equity” requires not just the same reward for everyone, regardless of ability and effort, but extra-special treatment for “victims” of … of what? A “system” that is obviously inequitable because of “white privilege”, “patriarchy”, and whatever other excuse the less able and their leftist supporters can conjure instead of facing facts about genetic and cultural differences that produce different outcomes — not only between identity groups but also within them.

Thus far I’ve only touched on K-12 and university education indoctrination. The search for “victims” is perpetual on the left.

Take the Palestinians as a salient example. They are “obviously” (to a leftist) “victims” of Israel because they live (mostly) in territories that were or are controlled by Israel: the Gaza Strip and the West Bank. There is also Israel’s controversial nation-state law, which according to an anti-Zionist source

declare[s] that only Jews have the right of self-determination in the country, something members of the Arab minority called racist and verging on apartheid.

The “nation-state” law, backed by the right-wing government, passed by a vote of 62-55 and two abstentions in the 120-member parliament after months of political argument. Some Arab lawmakers shouted and ripped up papers after the vote.

“This is a defining moment in the annals of Zionism and the history of the state of Israel,” Prime Minister Benjamin Netanyahu told the Knesset after the vote.

Largely symbolic [not observed in practice], the law was enacted just after the 70th anniversary of the birth of the state of Israel. It stipulates that “Israel is the historic homeland of the Jewish people and they have an exclusive right to national self-determination in it.”

The usual suspects have declared that the separation of Palestinians (and other Arabs) from Israel and from its governance amount to apartheid., a crime against “international (leftist) law”. From this it follows (to a leftist) that acts of savagery — like those committed by Hamas against Israelis on 10/7 — are justified because Palestinians are “victims”. It further follows (to a leftist) that Israel’s fully justified preventive retaliation is “aggression”.

Let’s take a few minutes to examine those premises.

It’s true enough that the denizens of Gaza are poor and feckless. But what makes them “victims”? They are about on a par with most non-Jewish Semites, except for the relative handful who are members of a professional caste or oil-rich. The basic problem with most such members of humanity —whether in the Middle East or elsewhere — isn’t that they have been put down by anyone (e.g., Israelis) but that they lack the intellectual, cultural, and natural resources to raise themselves up.

A “funny” thing about Israel is that it is of a piece with the surrounding lands occupied by non-Jews, but it has become a relatively prosperous place because Jews have the intellectual and cultural resources that undergird prosperity.

For their success and for the fact that they are Jews, the Jews of Israel are the targets of envious failures (Palestinian and Muslim hot-heads), Jew-haters (in addition to the hot-heads), and leftists who can’t bear to think that Palestinians (like American blacks) mainly have their genes and culture to blame for their failings.

Israel was founded (re-founded, really) in the wake of the Holocaust. It wasn’t meant to be anything but a Jewish state, run by Jews for Jews — a safe haven for a historically oppressed and brutalized people. Israel has been been under attack by Muslims since its modern founding. But Israel has a natural right to self defense and to preserve its Jewish character, just as the American rebels of 1776 had a natural right to declare themselves independent of a despotic King and rapacious Parliament.

So the Gaza Strip and the West Bank become de jure parts of Israel (though the Gaza Strip was foolishly handed over to anti-Israelis) as a matter of the natural right of self-defense. As for Palestinians living in Israel proper, why should they have a voice in the governance of a country that was re-founded for Jews? Well, despite the nation-state law cited above, they do have a voice in the governance of Israel.

So, all of the leftist propaganda to the contrary notwithstanding, Palestinians aren’t “victims”, except of their own genes and culture. But unlike the “liberals” of old, the left nowadays focuses on demonizing the meritorious instead of helping those who need help.

Finally, there is the accusation that Israelis are sometimes brutal in their own defense. Why shouldn’t they be? It’s impossible to defend a country against determined enemies without being brutal toward them — just as it’s impossible to protect law-abiding citizens by disarming them and depriving them of police protection. The left sees Israelis as brutal because the left despises Israeli Jews, not because Israelis are any more brutal than leftists like Hitler, Stalin, Mao, and their many successors unto the present day.

Coda: There was a time when most Americans recognized the need for brutality in the defense of Americans — which included existential threats posed by distant enemies. It is a sad commentary on the state of America that a sizable and influential segment of the populace no longer believes that America is worth defending.

Those pampered idiots somehow consider themselves to be “victims” of a system that allows them to spout such nonsense and to tear down the very laws and traditions that shelter them from the wrath of the rightfully aggrieved victims of their beliefs and policies: hard-working, tax-paying, law-abiding victims of unfettered illegal immigration, unnecessary Covid lockdowns, prosperity-draining regulations and regulatory agencies, unnecessarily high energy costs because of the climate-change hoax, etc., etc., etc.

The good, the bad, and the truly ugly.

Economics is about the production, exchange, and use of goods and services. I focus here on production, though production is influenced by exchange and use. Consumers are the end users of goods and services, and consumers’ wants drive production and exchange, or would do so in a sane world. (I’ll come back to that when I discuss the role of government on the production side.)

The production side of the economy encompasses several types of actor, where some persons may play more than one role in the epic. Some of the actors, as you will see, are responsible for the fact that real (inflation-adjusted) GDP grows at a much lower rate than it would absent their “contributions”. The cumulative effect of the lower rate is what I call America’s long-running mega-depression.

THE ACTORS ON THE PRODUCTION SIDE

Workers

They find or make and deliver the goods and services to consumers. Without them — miners, lumberjacks, farmers, truckers, carpenters, electricians, barbers, waiters, store employees, and so on — the economy (and population) would rapidly shrink to a primitive state of small-holding farms, hunting and gathering, and exchange mainly through barter.

Technologists

They devise methods and devices that enable workers to find, make, and deliver more, different, and better goods and services. This type — from the clever tinkerer to the doctorate in physics — has been indispensable to real economic progress.

Facilitators

Some of these (e.g., wholesalers) are hard to distinguish from workers, and could be classified as such. Others (e.g., trainers, accountants, bankers, and employees of stock-trading firms) perform tasks that enable businesses to launch, function more efficiently, and expand more to satisfy more of consumers’ wants.

On the side — not directly involved in business operations, but essential to them — are security operatives. These are supplemented and complemented by legitimate (if not always effective) arms of government: law-enforcement agencies and defense forces. As security fails, economic activity falters (witness rampant theft, looting, and subsequent store closures).

Bureaucrats

This type is of two kinds: essential and counterproductive. Essential bureaucrats are those persons who perform functions that a sensible business owner would want to have performed even if he weren’t required to do so by statute or regulation. A recruiter who seeks, screens, and recommends some job applicants for hiring is a bureaucrat that a large business might find it advantageous to have. An auditor who looks for waste, fraud, and abuse in the spending of the business’s money is another.

On the counterproductive side we find those bureaucrats whose actions make consumers worse off. This is done by perform functions mandated by governments, the brain-children of HR departments, and out-of-touch overseers who are seeking the approval of their peers for being “enlightened”.

The counterproductive side is guided by myriad government mandates which circumscribe what a business may produce; how it may produce it (even if inefficiently); who it may employ to produce it (even if incompetently); how much it must pay its employees (through the minimum wage and enforced unionization); where and how it may offer its products (e.g., through restrictions on operating hours, interstate transportation, and advertising).

Overseers

The owner-operator of a small business is but a worker (cum technologist and facilitator) who has to pay himself. In somewhat larger businesses, overseers often also serve as workers, technologists, and facilitators. My interest here is with the overseers in larger businesses, each of whom has responsibility for a particular function, or who is charged with the success or failure of the entire business. I omit shareholders— who almost never have an effective voice in the management of a larger business — and boards of directors — who rarely do more than rubber-stamp the CEOs’ wishes, unless a business is doing badly (often for reasons that have nothing to do with dispensable and dispensed-with CEOs).

THE VILLAINS OF THE PIECE: BUREAUCRATS AND OVERSEERS

If you have lived as long as I have lived, you don’t need to cite a bunch of statistics to show that bureaucrats and overseers have overrun the work force, in and out of government.

Part of this is due to the growth of government bureaucracies, which are filled with bureaucrats (of course) and headed by overseers (bureaucrats on steroids) who dream up more and more things that bureaucrats can do to impede the real economy — the one that consists of workers and facilitators. The work of government bureaucrats ineluctably leads to the bureaucratization of private companies.

Not only that, but government actions are driven by politicians (super-overseers), most of whom are in thrall to various identity groups. In the service of those identity groups, governments and the private companies whose fortunes they decide are riddled with incompetent workers and saddled with incompetent subcontractors. (See “Affirmative Action: A Modest Proposal”.)

THE CONSEQUENCES, AND MORE

And you wonder why things cost more than ten times as much as they did in the 1950s? Government itself and the things that it does to the private sector are the driving forces behind inflation.

And when super-duper overseers — the idiots at the top like presidents and governors — do really stupid things like forcing businesses to shut down and workers to “work” at home and pupils to “learn” remotely, things really go downhill: prices up, output and quality down.

That’s merely the frosting on the cake, which consists of shoveling money at corrupt foreign regimes (some of them terroristic) and domestic layabouts, and forcing private companies to hire incompetent workers and facilitators.

At the heart of all this, of course is the central government, which pretty much dictates to other governments and the nation at large. If the central government had to compete for your business with companies that actually produce things, it would disappear in a New York minute. But it won’t disappear. It just keeps growing — gobbling up your tax money and the money “printed” by the Fed to support its shiftless schemes.

And that, in a bowl of nutshells, is why things cost more than ten times as much as they did in the 1950s, why the economy produces far less than it could, and why nothing will be done about those things unless a “man on horseback” rides to the rescue.

If there is a devil, he is a leftist.

Neo asks “Is Religion Necessary for Morality?”, and answers thus:

When I ponder the question, I note – as I’m sure others have before me – that there are many believers who are amoral or even immoral in their actual behavior, and many non-believers who are moral. But I don’t know percentages. My guess is that more believers than non-believers live moral lives, but it wouldn’t surprise me if the differences were not enormously large. You can see some statistics on infidelity and religion here, for example.

A chart from the article:

Historically, it’s easy to show that religions and religious societies can become corrupt, and societies that are seemingly religious can wage religious wars or pogroms that are very murderous. The same is true of individuals. I’ve personally known a number of religious people with very shaky moral behavior, as well as atheists who are very upright.

Nevertheless, I think there’s something to the general proposition that a society in which most of the people throw religion away, and whose culture starts mocking religious belief, tends to be on the way to ruin. I don’t think that’s the only thing going on, though. Perhaps the loss of religion is a symbol of a decline rather than the main cause, but then it sets up a negative feedback loop a la Sodom and Gomorrah?

Just so.

Justice Clarence Thomas, speaking a few years ago at the dedication of Christ Chapel at Hillsdale College, quoted John Adams’s address to the Massachusetts militia in 1798:

“Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” Thomas underscored the critical point, one that is missing from most lamentations about the failures of the educational establishment. “The preservation of liberty,” he said in his peroration, “is not guaranteed. Without the guardrails supplied by religious conviction, popular sovereignty can devolve into mob rule, unmoored from any conception of objective truth.” [“A Genuinely Transgressive Act: On the Dedication of Christ Chapel at Hillsdale College”, The New Criterion, November 2019]

As traditional social norms and civil society were (and are) being shattered by the left, the destructive results — spelled out here by Malcolm Pollack — have merely invited the further growth of the state and the enactment of yet more destructive policies. Failure breeds more failure because the left cares not about consequences of its agenda. Power — absolute power — is its golden calf.

The left’s war on traditional social norms and civil society is of a piece with its abandonment of religion:

A survey from Gallup shows that religious affiliations have decreased dramatically among Democrats over the last 24 years.

According to Breitbart, the Gallup poll reports that in 1999, the number of Democrats who identified as religious in some way was at 60%, compared to 62% of Republicans. In 2023, that percentage is now just 37%, a staggering 23-point decrease that amounts to an average decrease of 1% every year.

“During that time, the percentage of Democrats identifying as spiritual but not religious has increased 14 points,” the survey reports, “while the percentage saying they are neither has tripled.” Meanwhile, “there has been no meaningful change in Republicans’ self-identification as religious or spiritual.” The percentage of Republicans who identify as religious has decreased by just one point since 1999, at 61% today. In the same span of time, the number of Republicans who identify as “spiritual” rather than religious rose slightly, from 25% to 28%.

Among independents, the number of those who identify as “spiritual” has decreased slightly from 37% to 32%, while those who identify as neither religious nor spiritual has risen noticeably, from 13% to 21%.

The decline in religious observance by the left has fueled the displacement of religion, community, and a common culture by the regulatory-welfare state, abortion on demand, anthropogenic global warming, feminism, “choice”, and myriad other totems, beliefs, “movements”, and “leaders”, both religious and secular. As a result of this secular nirvana, are our minds less troubled, do we sleep better, are we happier in our relationships, is our destiny more secure? The answer to each of those questions is “no”.

The tale was told long ago:

[1] Now the serpent was more subtle than any of the beasts of the earth which the Lord God had made. And he said to the woman: Why hath God commanded you, that you should not eat of every tree of paradise? [2] And the woman answered him, saying: Of the fruit of the trees that are in paradise we do eat: [3] But of the fruit of the tree which is in the midst of paradise, God hath commanded us that we should not eat; and that we should not touch it, lest perhaps we die. [4] And the serpent said to the woman: No, you shall not die the death. [5] For God doth know that in what day soever you shall eat thereof, your eyes shall be opened: and you shall be as Gods, knowing good and evil. [Book of Genesis, Chapter 3]

Thomas Sowell writes about the wages of leftist “intellectualism” in Intellectuals and Society:

One of the things intellectuals have been doing for a long time is loosening the bonds that hold a society together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, have long been treated as suspect or detrimental by the intelligentsia, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important. [p. 303]

In my view, the

left’s essential agenda  is the repudiation of ordered liberty of the kind that arises from evolved social norms, and the replacement of that liberty by sugar-coated oppression. The bread and circuses of imperial Rome have nothing on Social Security, Medicaid, Medicare, Obamacare, and the many other forms of personal and corporate welfare that are draining America of its wealth and élan. All of that “welfare” has been bought at the price of economic and social liberty (which are indivisible).

Freedom from social bonds and social norms is not liberty. Freedom from religion, which is a key objective of the left, is bound to yield less liberty and more crime, which further erodes liberty.

It’s meaningless.

Some years ago, Dahlia Lithwick of Slate inveighed against opponents of the “Living Constitution” without explaining it. Here’s Dahlia:

To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of “Originalism” or “strict construction” is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want….

A Nexis search for the words “living Constitution” turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words “living Constitution,” like the words “feminist” or “liberal,” have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Scalia is right. But let’s hear it directly from the late Justice:

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law….

… There is no text in the Constitution that you could reinterpret to create a right to abortion…. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms….

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee…. [I]n fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then … that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

What are the arguments usually made in favor of the Living Constitution?… The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is … an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility….

Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.

Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties….

Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work….

… If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me….

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning?… I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

… What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?”…

[W]here we have arrived — [is] at the point of selecting [judges] to write a constitution, rather than [judges] to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

The “Living Constitution” isn’t about rights, it’s about the ability of the those in power to impose their will on the masses, without going to the trouble of amending the Constitution or effecting constitutional legislation.

Eureka!

Bill Vallicella, in “Bull Meets Shovel: Could Consciousness Be a Conjuring Trick?”, regarding the claim that consciousness is an illusion, says that

it is self-evident that illusions presuppose consciousness: an illusion cannot exist without consciousness. The ‘cannot’ expresses a very strong impossibility, broadly logical impossibility. The Germans have a nice proverb, Soviel Schein, soviel Sein. “So much seeming, so much being.”  The point is that you can’t have Schein without Sein, seeming without being.  It can’t be seeming ‘all the way down.’

My purpose here is to offer a simple example of the reality of consciousness.

I enjoy playing four word games offered by The New York Times: Letter Boxed, Connections, Wordle, and Spelling Bee. Sometimes — especially in the cases of Letter Boxed and Spelling Bee — I will abandon a game before finishing it. I do that because coming back to it fresh often yields a word that leads me to victory. In the case of Letter Boxed, its the word that enables me to use twelve different letters to form two words (the sought-after minimum). In the case of Spelling Bee it’s a word that has eluded me but which I know should be added to the list of words that I’ve created from seven letters — sometimes a word that uses all seven letters, finding which is a prerequisite to victory (listing all of the words that can be made with the seven letters).

What happens is this: I abandon a puzzle and sometime later (if I’m lucky) the “right” word pops into my head. What that means, of course, is that my mind has been pondering the problem while I have been doing other things, and then — as if out of thin air — the answer, which must have been lurking in my subconscious mind, suddenly pops into my conscious mind.

That’s not an illusion. I have had so many similar experiences in my lifetime that I can say this with confidence: There is a real separation between thoughts of which I am aware (consciousness) and those of which I am unaware but which are occurring (subconscious mental operations).

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Related post: Intuition vs. Rationality