Fat Steve's Blatherings

Monday, December 26, 2005

The St. Onge/Monaco Dialogue continues: The Bill of Rights


        Jerry Monaco of New York has been leaving long, thoughtful, rather impassioned comments on this blog.  You can find the previous ones here, here, and here.  My response to that last contribution ran so long, I've decided to break it up by subject.  Of course, this neat separation won't last, but I expect that, and don't mind it.

        This installment concludes my response to Jerry's last set of comments.


        You wrote in your comment:
        Actually, what you call a lie, in referring to the ACLU doesn't make sense.  Calling such things lies is a category mistake.  Your interpretation of the constitution is wrong and I don't think you are lying.

        Well, I'm glad to see you agree with me 100% on this issue.

        What, you say you don't agree?  You say you were specifically disagreeing with me?  Sorry, but to maintain that position, words have to have meaning independent of the interpretation the reader chooses to put on them.  If they don't, then my interpretation of you as agreeing with me is perfectly valid.

        The official positition of the ACLU is, (or at least was, last time I checked), that the words "the right of the people" had a meaning that varied from Amendment to Amendment.

        My, the possibilities are glorious.  Want to reinstitute slavery?  Just say the Thirteenth Amendment means you can require someone to work for you for life, against his will, as long as you call it something else.

        Or perhaps you're a fan of censorship?  Just say that the phrase "no law" in Amendment One really means "any law you please."

        When it comes to something the ACLU already agrees with, like freedom of speech, they resist that principle of interpretation, and insist that "no law" in Amendment One means no law, none at all, not any, with only the most grudging of concessions regarding slander/libel, or child pornography, or military secrecy.  When it comes to Amendment Two though, interpreting the text the same way means that their desired political policy would be automatically unconstitutional, so they claim that the words "the right of the people" refer to a right of state governments — but only in that Amendment, not in Amendments One and Four.

        And your constitutional history, while correct, is irrelevant.  The issue was not 'How did the Bill of Rights, intended to restrain the federal government only, become applied to the states?'  The issue was 'Does James Madison's phrase "the right of the people" mean the same thing in the three Amendments he used it in, or different things from Amendment to Amendment?'  An honest argument that it means different things in different amendments might be interesting.  The problem is, I don't think it's possible.  And you certainly haven't attempted it.

        Ah, memories.  My speech teacher told me 'When asked to speak on something you don't know about, start out by pretending to comply, then change the subject to something you want to speak about.'  Did you study with Mr. Hemmen too?

        My contention remains that the ACLU lies when it claims the words of the Bill of Rights mean one thing in Amendments One and Four, when interpreting "the right of the people" as an individual right coincides with their pre-existing agenda, but mean a different thing in Amendment Two, when it conflicts with their pre-existing agenda.

        As for the Roger Baldwin quote, I saw it years ago, and made the mistake of not keeping a reference.  But I'm looking for a source, and if I ever find it, I'll post it.

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  • Given the season I have been away from my the desk. Maybe I will write piece by piece to you. But you should take a look at what you previously wrote before you reply.

    If I interpret the words "black ink" in Robert Lowell's poem "Florence" to refer to "gall ink" made in "Florence" and you interpret the words to refer only to cuttlefish ink and I am wrong and you are right that does not make me a liar. A charitable interpretation of you calling me a liar would not be that you lack civility but that you are making a category mistake. I insist that you are making a category mistake.

    In fact it is a standard interpretation of the law, unquestioned even by Scalia that words and phrases in one amendment or law or contract do not mean exactly the same thing when they are in another amendment, law or contract. They should be interpreted in same and similar ways but they vary according to context. Abusiveness will not win an argument.

    As for the second amendment you don't seem to know much about it.

    The whole history of the right to bear arms assumes local control over militias. I am all for that. The idea behind the Second Amendment was to promote something like the Swiss Canton system and its system of defense. Each male adult had his gun at home and the Swiss army was the whole of the people in arms. The world view that made this conception important was a suspicion of a standing army run by the King or the President. The idea that the President would have at his beck and call a massive army separate from local militias was considered tyranny per-se. I would happily return to this view of a people in arms and of the tyranny of standing armies. Standing banks, state sanctioned corporations, and standing armies should all be abolished as a matter of republican virtue. There should be no permanent armed forces except local militias that are ready to defend the home. Unfortunately this would not allow us to have army bases in most places in the world.

    I am being sarcastic of course. But this is only to point out that the people who get so hot about the Second Amendment are also very hot to promote the kind of tyranny that the Second Amendment was meant to prevent. Well the hope behind the world view of the radicals of the American revolution was soon discarded. What it has been replace by is a hypocrisy so deep that it touches every aspect of debate. It is a hypocrisy so pervasive that you don't even recognize the contradictions that are a part of your arguments.

    I am sorry but brutality and lust for violence in your previous posts make me sad. You truly do not know the suffering you try to justify.

    Generally, I agree with you that the Second Amendment, was put in place so as to not allow the Federal Government to stop people from bearing arms. I am personally in favor of this interpretation. Still most of the gun laws are not made by the federal government but by state and local governments. The people simply have no "right" to bear arms apart from the formation of locally sanctioned militias.

    Calling people liars may make you feel good and make you feel righteous and may help you to feel that your intolerance is right but what it mostly does is make your arguments weaker.

    By Anonymous monacojerry, at 2:21 PM  

  •         "In fact it is a standard interpretation of the law, unquestioned even by Scalia that words and phrases in one amendment or law or contract do not mean exactly the same thing when they are in another amendment, law or contract."


            Actually, I know that the Founders distrusted standing armies, considering them a threat to liberty.  But they gave Congress the right to create one, and it has. 

            And calling a standing army's very existence 'tyranny' is bending the concept out of shape.  The fact that about one half of one percent of the population is part of a standing armed force doesn't infringe on a single right of mine that I can see.

            "Generally, I agree with you that the Second Amendment, was put in place so as to not allow the Federal Government to stop people from bearing arms.  I am personally in favor of this interpretation.  Still most of the gun laws are not made by the federal government but by state and local governments.  The people simply have no "right" to bear arms apart from the formation of locally sanctioned militias."

            In the first place, the word 'militia' meant, at the time the Amendment passed, 'All more or less physically fit males, from the late teens till middle age.' Many state laws and state constitutions preserve this definition (I remember my surprise, as a high school student, finding out I was a member of the California State militia).

            But if the Second Amendmendment doesn't apply to states and localities, which is the way it was originally intended, then neither does the First Amendment, or the Fourth, or Fifth.  The idea that the Fourteenth Amendment incorporates into state constitutions whatever parts of the Bill of Rights the Supreme Court feels it would be a good idea to incorporate is just another example of the intellectual dishonesty that I brought up in the first place.

            As for calling people liars, I do it when I catch them telling lies.  The ACLU pretends to protect constitutional rights, but in facts protects only rights it approves of.  If they were simply a political lobbying group, moving for laws and constitutional amendments that would put their views into place, they'd be acting honestly.  When they pretend that whatever political position they're in favor of this week is already in the U.S. Constitution, they lie.

            Which raises the question of why you feel the need to pretend they're honest?

    The House of Saud Must Be Destroyed!

    By Blogger Stephen M. St. Onge, at 12:00 AM  

  • As far as citations are concerned do I really need to dig up all of this research that you can find by going to any Contracts or Statutory Interpretation textbook? It is simply common place interpretation. No matter what phrase of a contract or statute that you pick that phrase is interpreted in context. The assumption often is that if the phrase is used in the same context somewhere else then the meaning is the same or similar. But this is often not the case. For instance, the notion of "malice of forethought" means something different in criminal law, tort law, and First Amendment law. The Due Process clause in the Fourteenth Amendment means something different than it does in the Fifth Amendment. "Acceptance" of contract terms means something different in a contract for goods, than it does in a contract for services. The word "acceptance" in a contract for goods means something different in a contract that is governed by the Uniform Commercial Code, than it does in a contract that is governed by the common law. The word "venue" means something different in a stature for criminal law than it does in a contract that specifies a choice of venue. Sometimes a "choice of law" clause in a contract is interpreted as being also a choice of venue clause and sometimes it isn't, depending on the law applied and who is supposed to apply it. The term "informed consent" means something different when referring to torts law than it does when referring to contracts law. Sometimes within a single insurance contract the same phrase will be interpreted in one way when applies to the person being insured and another way when applied to the insurer, mostly because of quasi-rules such as contra proferentem.

    Every adult male was potentially a member of the militia. This was considered a safe-guard to liberty. But the founders had in mind locally organized militias.

    During the controversy over Shays Rebellion, when arguments raged over disarming the locally formed militia of Daniel Shays all of this was put to the test. It turned out whether a person was a member of a militia or a member of a mob of insurrectionists was a matter of point of view with the Federalists on once side and the more radical Republicans on the other side. If you need a reference I suggest "The Radicalism of the American Revolution."

    Your knowledge of the history of the incorporation of the Bill of Rights through the Due Process clause of the Fourteenth Amendment is deficient.

    This incorporation is a prime example of "liberal" judicial activism. But what is usually left out is that the whole need to incorporate sections of the Bill of Rights through the Due Process clause of the Fourteenth Amendment is a result of "conservative" judicial activism. Originally, the framers of the Fourteenth Amendment mostly agreed that "the privileges and immunities clause" would incorporate the rights of national citizenship and apply those rights to the states. It was assumed by most of the framers of the 14th that "privileges and immunities" in the Fourteenth was not the same as "privileges and immunities" in Article Four of the Constitution. In the Slaughter House Caes four members of the court interpreted the 14th Amendment as making "national citizenship" a protection of the "fundamental rights" included in the Bill of Rights. Most of the framers of the 14th amendment would have agreed with this interpretation. The right wing judicial activists instead interpreted the "privileges and immunities" clause in the 14th Amd. as simply being the same as the "privileges and immunities" clause in Article Four, thus making it a redundancy.

    Then came the incorporation controversy where the due process clause was used to partially incorporate the Bill of Rights into the constitution. Notice I said "partially" incorporate. You don't seem to be aware that the Fifth Amd. is not applicable to the states, only most of the Fifth Amendment. The Grand Jury clause is for instance not applicable to the states.

    The Second Amendment is not the only Amendment not incorporated through the 14th Amd. to apply to the states. Also the Third Amd. and the Seventh Amd. I just assumed that you knew all of this since it is what I learned in my Catholic School as a child. To make a statement such as "But if the Second Amendment doesn't apply to states and localities, which is the way it was originally intended, then neither does the First Amendment, or the Fourth, or Fifth." is simply to ignore the history. It is to ignore the history of the Constitution and its dependence on interpretation. The question of interpretation with the second amendment is "Was the Second Amendment mainly a state sovereignty (i.e. states rights) amendment like the Tenth and Eleventh Amendments or was it something else?" If the Second Amendment was an amendment meant to guarantee state sovereignty over local militias then there is no need to incorporate it into the constitution.

    As far as standing armies are concerned, there was much debate on this during the Revolutionary and Constitutional Period. Standing Armies were considered not only potential tyrannies but inherently instruments of tyrannies. This was again a part of the radicalism of the American revolution. But of course "incoroporations" were also considered instruments of tyranny by those on the "democratic" wing of the American revolution.

    Of course arguing over what the debates were between T.J. and John Adams (for instance) over matters of "standing armies" and "incorporations" remains in the realm of political ideology or theory or is simply a matter of historical interest. It may show us how far we have actually strayed from enlightenment ideals. (This is true of both the "left" and the "right" who all seem to generally agree that enlightenment ideals should be eliminated from our political values.) But the real question would be does our "military system" have effects in the U.S. and around the world that are anti-democratic? I suspect you are all for having some 130 bases or so in foreign countries and using the military system to subsidize state-like entities such as General Electric, Boeing, and, in the old days, propping up Coca-Cola in Columbia and the United Fruit Company in Central America. If Guatemala wants to tax the United Fruit Company, then "we" should invade them and put such uppity people in their place. That, after all, is what a standing army is for. A standing army is always and everywhere for domination over democratic tendencies. The kind of religious fanaticism that we misname "patriotism" are our ideological blinders which prevent us from seeing what is actually going on in the world and what such military might is used for.

    Listen, you may think that standing armies are not fundamentally instruments of tyranny; you maybe in favor of huge military forces that can be used at will by monarchs and presidents and be in favor of them; but I remain true to a libertarian and enlightenment tradition that argues that an army must be coextensive with the people and must be fundamentally democratic in order to be congruent with a democratic polity. Of course given current circumstances and the entrenched institutions of a powerful executive, the military system, and huge anti-democratic corporate entities the realization of this old fashion view of democratic-republicanism is a far off ideal.

    Jerry Monaco

    By Anonymous monacojerry, at 11:05 AM  

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