The Logic of Abortion

          Old Gadfly:  Gentlemen, this week the U.S. Senate Judiciary Committee performed its “advise and consent” duties during lengthy hearings of President Trump’s nomination of Brett Kavanaugh to fill a Supreme Court of the United States (SCOTUS) vacancy created by the retirement of Associate Justice Kennedy.  What would you say is the left’s central political issue with President Trump’s pending nomination?

AM:  Democrats are concerned that his choice (no pun intended) would overturn SCOTUS’s 1973 Roe v. Wade ruling.

 

IM:  Republicans, on the other hand, are focused more on a candidate they regard as an originalist or textualist, one who will strictly interpret the original meaning of the Constitution’s text, as opposed to elite who trust five black robes to legislate from the bench, essentially softly amending the Constitution through judicial rulings.  The left strongly supports SCOTUS judicial activism, and its creation of Constitutional rights.

 

AM:  Kavanaugh argued that everything in the Constitution points to liberty.  Thus, one can reasonably infer that the freedom to choose to terminate a pregnancy is a liberty to be protected in the Roe v. Wade ruling.  Since subsequent abortion-related cases have not overturned Roe v. Wade, the “law” seems to be protected by legal precedent.  Precedent is one of the principles that Kavanaugh cites in his legal analyses.

 

IM:  Other constitutional scholars understood Roe v. Wade to be a blatant example of judicial activism.  For example, here is a commentary from Justia:

The Court was praised in many circles for its progressive attitude toward evolving social trends, even though the decision was framed in paternalistic language and seemed more focused on protecting physicians than women. However, many commentators have viewed its decision as a prime example of judicial "activism," a term that refers to when the Court is seen to infringe on the authority of other branches of government. A magnet for controversy to the current day, Roe has been challenged consistently and lacks support from many current members of the Court. The trimester framework proved less workable than the majority had hoped, and decisions such as Planned Parenthood v. Casey have eroded what initially seemed like a sweeping statement in favor of women's rights. Many states that oppose Roe have enacted laws that will go into effect in the event that it is overturned.

Old Gadfly:  Liberty is one of the three inalienable rights our government was ordained and established to protect.  Life and the pursuit of happiness are the other rights.  But, we’ll get to these later.  For now, let’s summarize the basic facts about Roe v. Wade.  Who were the plaintiff and the defendant in this case?

AM:  Jane Roe was the alias 21-year old Norma McCorvey, the plaintiff, and her attorneys Linda Coffee and Sarah Weddington used when they initially filed a lawsuit against Henry Wade, the Dallas County District Attorney who represented Texas law that allowed legal abortions only in the case of rape, incest, or the health of the mother.  McCorvey initially tried to get an abortion (this was her third pregnancy) claiming rape, but there were no police reports of a rape.  She ended up giving birth and then giving the child up for adoption.  Incidentally, McCorvey today is a pro-life activist.

Old Gadfly:  What was the basis for the case before SCOTUS?

IM:  In 1970, “Roe” claimed Texas law was unconstitutional.  Judges from the Northern District of Texas and the Fifth Circuit Court of Appeals ruled in favor of Roe, based on the “implied right to privacy” of the Ninth Amendment, but declined to issue an injunction against enforcement of the law.  This led to an appeal to SCOTUS.  SCOTUS deferred hearing the case till related cases had been adjudicated.  They eventually heard the case and announced their 7-2 ruling in favor of Roe on January 22, 1973.    SCOTUS rejected the District Court’s Ninth Amendment rationale in favor of a right to privacy under the Fourteenth Amendment.  Justice Blackmun, writing for the majority, acknowledged that the majority of States had statutes similar to the Texas statute, yet for reasons explained in his opinion declared abortion a fundamental right under the United States Constitution and rejected the argument of a fetus’ “right to life.”

Old Gadfly:  Wasn’t the Fourteenth Amendment one of the three Reconstruction Amendments following the Civil War?

AM:  Yes.  SCOTUS invoked Section 1 of the amendment, which was ratified on July 9, 1868 with the explicit intent to enfranchise former slaves as citizens with the same rights as other American citizens.  The language in Section 1 is straight-forward:

Section 1.  All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.

     

Old Gadfly:  How does abortion fit into any of this language?

 

IM:  Great question.  Abortion is an action that involves the deliberate termination of a pregnancy.  No one is depriving a pregnant woman of her right to life, liberty, or property.  In the vast majority of abortion cases, a woman becomes pregnant after voluntarily engaging in sexual intercourse.  No one deprives a woman from this liberty and as such enjoys equal protection of the laws.

 

Old Gadfly:  The Fourteenth Amendment clearly states: “nor deny any person within its jurisdiction the equal protection of the laws.”  Is not the emerging life in a mother’s womb a person entitled to the same rights to life, liberty, and happiness?

AM:  Terms and definitions seem terribly vague.  Some believe life begins at conception.  Others subscribe to a more complicated understanding of when a human life begins.  For an example of the latter group, a close reading of Justice Blackmun’s opinion reveals an attempt to derive answers to this question.  His opinion summarized eight major themes:  ancient attitudes, the Hippocratic Oath, the common law, the English statutory law, the American law, the position of the American Medical Association, the position of the American Public Health Association, and the position of the American Bar Association.  While these themes provide a variety of perspectives throughout history, none really support the logic used in the final ruling, which speaks to a woman’s fundamental right to privacy as justification for allowing abortion.  In his opinion, Blackmun even admitted:  “The Constitution does not explicitly mention any right to privacy.”  Yet, he follows this fact with a series of Court rulings that support an “implied” right to privacy.  In the process, Justice Blackmun articulated what is called the trimester framework to offer a “strict scrutiny” guideline that does not question the right to an abortion in the first trimester, allows State intervention if the mother’s health is at risk, and if the “fetus is viable,” allows the State to restrict the right to an abortion but must include an exception to any regulation that protects the health of the mother.

Old Gadfly:   This sounds like a tortured rationalization for justifying an act that many would regard as murder or an assault on the sanctity of life, which is a God-given unalienable right.  The Amendment refers to a person.  When does a fertilized egg become a person?  At conception?  Upon birth?  Upon the capacity to procreate? Upon voting age?
   

IM:  A one-cell amoeba is an example of life, and it even demonstrates primitive awareness when it adapts to its changing environment to survive.  A dandelion physically demonstrates primitive awareness when it leans toward the sun.  A fertilized human egg demonstrates even more sophisticated primitive awareness when its DNA signals the production of different cells that become part of a system of systems in the most sophisticated and complex forms of life.

 

Old Gadfly:  So, it seems as though the ruling in Roe v. Wade was an unwitting attempt to tamper with the laws of nature.

 

AM:  What I find ironic is that our Founders/Framers understood life, liberty, and pursuit of happiness as unalienable rights granted by a Creator, not a Constitution.  The American Constitution is a system of governance to protect these God-given rights.  In conflict with these rights, SCOTUS ruled in Roe v. Wade that the Constitution grants a fundamental right to an abortion as an extension to the implied man-made right to privacy.  Aside from all the quibbling, abortion is the termination of a life, which is a God-given natural right.

Old Gadfly:  Gentlemen, since we are men, we can only attempt to understand the issue of abortion through logic.  Perhaps there are other valid reasons for SCOTUS to validate a Constitutional right to an abortion.  What might they be?

IM:  One reason might be similar to catching a cold.  No one would reasonably and deliberately seek to catch a cold.  Some people will go to great lengths to protect themselves from a cold—avoiding contagious people, frequently washing hands.  Some who are less vigilant become more vulnerable.  Yet, we see good reasons for developing remedies to overcome the effects of catching a cold.  So, perhaps women who become pregnant with an unwanted child are either ignorant of the pregnancy risks of sexual intercourse or already know she has access to a government-funded abortion. Unlike catching a cold, getting pregnant is an outcome of deliberate intercourse with the exception, in a very small percentage of pregnancies, of incest or rape.

AM:  Rape, by definition, involves coercion.  While this may sound harsh, not all cases of incest involve coercion.  Even in cases defined as statutory rape, it does not matter if the sexual activity was consensual.  In any case, the child in the mother’s womb has no choice, of being there, being violently vacuumed out of the womb, or carefully dissected to preserve lucrative body parts for research.

IM:  I can imagine a young, confused and frightened rape victim seeking liberation from this crime be getting an abortion only years later to regret the decision, wondering what would have become of her child as a grown man or woman, knowing there is no way to correct the action.  Would the remorse be less intense in giving up a child for adoption as opposed to aborting it?  The remorse would reflect empathy for the child who had no role in the crime.

AM:  Your imagination reflects actual empirical evidence.  Dr. David Reardon of the Elliott Institute has revealed that not only does an abortion damage a woman physically and psychologically, in cases of rape or incest, over 80% who aborted did regret the decision.  Over 80% who did not abort are glad they made the right decision.

 

Old Gadfly:  I often hear people preferring to use the terms pro-choice and reproductive rights instead of the Constitutional right to an abortion.  Do these terms more accurately describe the logic of abortion?

IM:  No.  The term “pro-choice” applies only to the decision to let the child in a woman’s womb live or not.  It completely ignores the choice that led to the pregnancy.  Well-over 95% of pregnancies result from consensual sexual activity.[1]

 

AM:  Then there is the claim of a woman’s “reproductive rights.”  If this concept is intended to suggest anything other than a decision to reproduce, then it is dishonest and disingenuous.  What it really means is the right to engage in sexual activity without consequence.

 

Old Gadfly:  There are other concepts that should be considered in this discussion.  I would argue that most Americans believe in free will as an important element of the concept of liberty.  Liberty is not a license to engage in behaviors that violate laws or harm others—actions that are contrary to the notions of “establish Justice” and “insure domestic Tranquility” in the Preamble to the Constitution.  We respect, and our Constitution is designed to protect, the individual right to exercise free will within a just society.  Exercising liberty includes respecting the rights of others.  But, when an action violates the law or harms others, then the individual making the choice violates the rights of others.

 

IM:  Good point.  Where does the choice to have sexual activity fit into one or more of the cardinal virtues of prudence, justice, fortitude, and temperance?  Is it prudent for a single woman to engage in sexual behavior?  What are the potential consequences if one is to become pregnant?  How would such an act promote the common good of society?  How is an aborted pregnancy just?  Does sexual activity represent an intemperate action reflecting vices of lust, sloth, or pride?

Old Gadfly:  Closely related to these arguments is the inalienable right to the pursuit of happiness.  Engaging in sexual activity without consequence is completely irrelevant to the pursuit of happiness, because it reflects mere primitive desire and behavior.  Enduring happiness, according to Immanuel Kant, is the reward of performing one’s moral duty—foregoing personal self-interest in favor of a greater good, such as being a good husband, father, wife, mother, neighbor, teacher, doctor, soldier, citizen, and so forth.  A decision to abort one’s child is not a moral duty.  It is contrary to summum bonum, Kant’s categorical imperative known as the greatest good.[2]  In the grand scheme of things and in relation to the American idea of the “general Welfare,” a deliberate abortion is completely immoral.

AM:  I think we can agree that abortion as a so-called Constitutional right defies logic and appears to have been an invented right by seven members of SCOTUS.  The decision remains controversial among constitutional scholars, not to mention ordinary citizens who are loyal to their Judeo-Christian tradition.

 

Old Gadfly:    Why do you believe Roe v. Wade is such a litmus test for those on the political left?

IM:  Power. Women vote; unborn children don’t.  They fear that a new Court might “tamper” with the rationale used in the Roe v. Wade ruling, and in the process diminish the presumed power of groups like Planned Parenthood and the politicians with whom they collaborate.  Those who believe in the importance of a Constitutional Republic would be wise to consider scholar Robert Dahl’s caution:

To govern a state well takes more than knowledge.  It also requires incorruptibility, a firm resistance to all the enormous temptations of power, a continuing and inflexible dedication to the public good rather than benefits for oneself or one’s group. . . . The likely effects of power on those who wield it were succinctly summed up in 1887 by an English baron, Lord Acton, in a famous statement:  ‘Power tends to corrupt; absolute power corrupts absolutely.’ . . . However wise and worthy the members of a ruling elite entrusted with the power to govern a state may be when they first take power, in a few years or a few generations they are likely to abuse it.  If human history provides any lessons, one surely is that through corruption, nepotism, the advancement of individual and group interests, and abuse of their monopoly over the state’s coercive power to suppress criticism, extract wealth from their subjects, and insure their obedience by coercion, the Guardians of a state are likely to turn into despots.[3]

AM:  I might add that life is filled with adversity--some due to choices, some due to circumstances beyond one’s control.  Elitist arrogance of thinking that society has a moral obligation to remedy the full range of adversity is what C.S. Lewis cautioned against in The Abolition of Man—where elite are the conditioners and those they rule are the conditioned.  In their attempt to conquer nature, nature will conquer man.  The broader implication of this truth is that the same advocates for abortion are the same who wish to punish skeptics of the man-made cause of global warming or climate change. Contrary to this intellectual trend is recognizing the founding idea of America as was one of a self-governing people based on wise and virtuous behavior.  A liberal education (far from a progressive education designed to create instruments for social and political change) is needed to build capacity for virtuous decisions/actions.  Accumulated wisdom would then arm us with the capacity to (a) adapt to, overcome, or mitigate adversity; and (b) extend our wisdom-based traditions into the future, which is one of the expectations of our Constitution’s Preamble to “secure the blessings of Liberty to ourselves and our Posterity.”  The life in a mother’s womb is the “Posterity” our Constitution was designed to protect.  SCOTUS rulings and precedents seem to have ignored this part of the Constitution.

 

Old Gadfly:  Well argued, AM.  We began this conversation with the observation that the left is concerned about President Trump’s nomination for the Supreme Court.  Members of the Supreme Court are certainly important in carrying out their enumerated powers under Article III.  These powers, as well as those delegated to the Legislative and Executive branches, derive their authority from “We the people.” Do we want to be a wise and virtuous people, or not?  President Trump understands this.  He has nominated an associate justice who reflects a wise and virtuous sentiment.  Armed with the inalienable rights of life and liberty, we too must reinforce President Trump’s nomination with our own consistent and habitual wise and virtuous behaviors in every capacity as we pursue happiness—it’s a moral duty and the only way

We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The moral dilemma and logic of abortion may not be the proper jurisdiction of SCOTUS.  The debate about abortion reflects the crisis of virtue that permeates our modern society, reflected in the great political divide that dampens the American spirit.  Many of those who have hate and contempt for Donald Trump are projecting the hubris of progressivism.  It is not really Trump they hate.  They hate that for which he stands.  He stands for American greatness—a greatness inspired by our Declaration of Independence and codified in our system of governance.  The sacredness of abortion reflects the left’s emptiness and its lust for political power—conditioners dictating to the conditioned.     

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[1] For compelling data on reasons for abortion see http://www.johnstonsarchive.net/policy/abortion/abreasons.html

[2] For an excellent treatment of the construct of happiness and its moral attributes, see the essay on “Happiness” in The Great Ideas:  A Syntopicon:  Volume I (Chicago IL:  Encyclopaedia Britannica, 1952).

[3] Dahl, R. A.  (1998).  On democracy.  New Haven, CT:  Yale University Press, pp. 73-74.

The Flores Amendment and Other Distortions

            Old Gadfly:  Gentlemen, this past Sunday, while watching Meet the Press, there were two segments that caught my attention.  First, I thought I heard Chuck Todd make a “Freudian slip.”  Then, I checked the transcript, and sure enough, while interviewing Senator Angus King (following the segment with Senator James Lankford), Todd said:  “Very quickly on this, Senator Lankford, he's leading to try to fix this Flores Amendment.”  I see a lot of implications in this statement.  The second segment was the manner in which Todd paid tribute to the late Charles Krauthammer.  Your thoughts?

            IM:  I watched the same program.  Let me take on the Flores Amendment.  First, progressives actually treat the “Flores” settlement as a Constitutional Amendment.  This was a Ninth District Court ruling based on a class action law suit filed on behalf of illegal aliens:  see Flores et al. v. Meese, also see this summary.  Yet, the very progressive California Court gave the plaintiffs (illegal aliens) legal standing in the court ruling.  In essence, the Court overruled a federal agency’s policy that was derived from Congressional legislation.  The fact that Congress fails to challenge these actions indicates to what extent Congress has abdicated its Constitutional authority under Article I, essentially deferring to the Courts as the ultimate legislators.

            AM:  Republicans have pushed proposals to solve the immigration issue.  Frankly, Democrats are obstructing these proposals because a solution provides zero political capital during a midterm election.  They present themselves as the moral arbiter in liberating the oppressed, which is very Marxian.  In a concerted effort by various elements of the progressive left (politicians, academics, the media, and Hollywood), the public narrative has been intentionally distorted to obfuscate reality.  They say President Trump created this crisis with his “zero tolerance” policy, then reversed course with an Executive Order.  The reality is that President Trump was responding to illegal entry into the United States by more firmly enforcing existing policy created by previous Administrations.  The President is charged under Article II of the Constitution with faithfully executing the laws of our Nation.  The complicit, yet very progressive “fake news” uses optics to exacerbate the “apparent crisis,” with the majority of images taken during previous Administrations.  The progressive left, which was hypocritically and deliberately silent during the Obama regime, has manipulated this issue in such a way as to generate political capital for election purposes.  So, who is being used as an instrument to secure political power?  Children.  The irony is that this is consistent with their complete disregard for the sanctity of life in collaborating with the eugenicists from Planned Parenthood—again, for political power.

            Old Gadfly:  This must be part of a more sinister vision.

            IM:  Absolutely.  President Trump symbolizes the traditional idea of America—a Constitutional Republic.  Enough Americans who also believe in this vision elected Donald Trump into office.  Yet, as we witnessed, it was the Electoral College, a mechanism that was truly understood by our Framers that made this happen.  Trump’s opponent supposedly won the majority vote.  I say supposedly because the jury is still out on the extent of fraudulent voting.  Progressives believe in a democracy as opposed to a republic.  A republic is based on a self-governing society and the rule of law where the law governs.  The American republic is further grounded in the Judeo-Christian tradition and the pursuit of cardinal virtues of prudence, justice, fortitude, and temperance.  A democracy, on the other hand, is based on the rule of government where the government governs.  If you really think about it, we are witnessing a race toward a direct democracy with two classes:  the governed masses and the ruling elite.  Illegal immigration can accelerate this process.

            AM:  I find it interesting, IM, that you mention the cardinal virtues.  Prudence involves reason and a pursuit of truth, something to be discovered.  Progressives promote visceral emotions for persuasion and create the truth in the process.  Justice demands each individual be treated equally—each receiving what (reward or punishment) is due to him or her based on their own actions.  Progressives do not believe in justice because their Marxist ideology says that the oppressed (real or imagined) must be liberated through social justice.  This is why the border scenario is such a powerful propaganda tool for appealing to visceral emotion.  Progressives pervert the truth to justify their tactics.  Think about it.  When a black person makes it known that he or she is a conservative, they are pejoratively called by the progressive left an Uncle Tom.  Anyone who has actually read Harriet Beecher Stowe’s wonderful novel, Uncle Tom’s Cabin, will tell you that Uncle Tom (and the three brave black women he protected) was a heroic figure—one who demonstrated the third cardinal virtue of fortitude.  The fact that Uncle Tom has become an epithet contrary to its original meaning represents the same unvirtuous and contemptuous behavior of those who use slurs such as racist, homophobe, misogynist, xenophobe, Islamaphobe, and so forth against those who hold different views on these topics.  Even the great Frederick Douglass spoke of prudence, justice, fortitude, and temperance in his epoch speech, Self-Made Men.  Temperance involves self-discipline and command of one’s passions.  This is contrary to the progressive’s victim and entitlement mentality.

            IM:  To really understand the modern, progressive Democrat is to understand the progressive vision of Herbert D. Croly.  Here is an assessment (a white paper under the Research & Analysis Tab, pp. 3-4) by the American Constitution Foundation:

Reflecting the progressive vision of Herbert Croly,[1] judicial activists believe it is far more expedient and efficient for highly educated elite to softly amend the Constitution through judicial rulings.  The major manifestation of the progressive vision in modern America is a living constitution[2] that reflects tradition and legal precedent (similar to Great Britain’s approach, which has no written constitution).  The “progressive” tradition is a created tradition based on ideas of a more perfect union, not the inherited “traditional” tradition that is based on tried and tested wisdom.   This shift in thinking has now been institutionalized in “the Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated), which contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law.”[3]

 

         AM:  This evolution in American political thinking reflects the fruit of a progressive educational system.  Unfortunately, for the past century, progressives have dominated public education from K-12 through the university system.  Today’s “educated” person arguably reflects a programmed class of “instruments for social and political change,” similar to the animated comedy, Antz.  This is why many ”progressives” spontaneously and emotionally react to skeptics of ideological dogma such as global warming, life-style rights, a woman’s reproductive rights, and so forth.

            Old Gadfly:  Are you exaggerating reality, AM?

            AM:  No.  Contrary to mainstream media propaganda, there is compelling scholarship to support what I said.  See, for example, Henry T. Edmondson III’s book, John Dewey & the Decline of American Education:  How the Patron Saint of Schools Has Corrupted Teaching and Learning.  Edmondson aggressively evaluated and synthesized the literature on education within the context of Dewey’s educational philosophy and its manifestation for the past century.  For example, here is an illuminating synthesis:

 G. K. Chesterton notes, “It ought to be the oldest things that are taught to the youngest people.”  Yet schools are failing to transmit the American intellectual tradition and so are increasingly unable to cope with the present or to anticipate wisely the future.  Walter Lippman once observed that “what enables men to know more than their ancestors is that they start with knowledge of what their ancestors have already learned.”  “A society,” he added, “can be progressive only if it conserves its tradition.”  Chesterton explains that a society carries “the responsibility of affirming the truth of our human tradition and handing it on with a voice of authority, an unshakable voice.”  Yet he also notes, “From this high audacious duty the moderns are fleeing on every side; and the only excuse for them is (of course) that their modern philosophies are so half-baked and hypocritical that they cannot convince themselves enough to convince even a new born babe.”  John Stuart Mill defines education as “the culture which each generation purposely gives to those who are to be its successors, in order to qualify them for at least keeping up, and if possible for raising, the level of improvement which has been attained” (pp. 111-112).[4]

Edmundson then follows with this conclusion:

Progressive education appears in many guises.  Its animating principle is a rejection of tradition; so that, ironically, progressive education is anything but progressive.  Despite the rhetoric by which it is promoted, Deweyan-inspired education is not progress toward something, it is movement away from the best ideas that the Western tradition and human experience have to offer (p. 112).

Old Gadfly: Education is critical in shaping our culture.  Have you noticed the spike in suicide rates among our younger Americans?  If progressive education was so superior to traditional education, then why do we see so much despair and anger?

IM:  In the late 50s, nearly 100% of the American population was affiliated with a Christian or Jewish religion.  Today that number is around 72%, according to the Gallup Poll.  Traditional Judeo-Christian values are being replaced by secular human values and a progressive patriotism to a Utopian future created by progressive ruling elite that imprudently rejects the wisdom accumulated through our inherited tradition.  Meanwhile, our younger generations will suffer from the lack of a virtuous foundation to appreciate reality and to endure the inevitable adversity of reality.

Old Gadfly:  So, we’re talking about meaning and a sense of moral purpose during our mortal lives.  This brings us to the second segment on Meet the Press that paid tribute to Charles Krauthammer.

AM:  You are right that it was disingenuous.  Todd failed to provide context—that Krauthammer was a modern liberal, writing for the progressive magazine, The New Republic (created by Herbert Croly), before he covered a story about President Reagan.  In the process, he (a) learned things about Reagan that were inconsistent with the progressive left’s portrayal of him and (b) articulated the Reagan Doctrine.  Krauthammer’s courage and discernment to discover the truth that led to his conversion from an idealistic world of “created truth and tradition” to a more conservative view of a world filled with discovered truth, justice, beauty, and goodness.  Krauthammer was a brilliant, athletic, and handsome young man, whose life was irreversibly altered at the age of 22 from an accident that left him a quadriplegic.  He never gave in to the temptation of despair.  Todd only feigned a tribute to finish the segment with a prediction Krauthammer made about a President Trump on November 8, 2016.  In other words, Todd teed up Krauthammer’s passing for a political jab at the current President.  Progressives have an incurable disease of using people (children, babies, immigrants, and a large set of various indentured “identities”) for political gain.  A genuine tribute would have quoted Krauthammer’s last words:   “I leave this life with no regrets. It was a wonderful life — full and complete with the great loves and great endeavors that make it worth living. I am sad to leave, but I leave with the knowledge that I lived the life that I intended.”

Old Gadfly:  Such empowering words.  Krauthammer’s writing always seemed to be grounded in a context of virtue.  Our Founders/Framers believed in the great American experiment of a Constitutional Republic, grounded in the Judeo-Christian tradition and the four cardinal virtues it represents.  Dealing with the current and pressing “immigration issue” is needed and important.  Hopefully, reasoned minds can approach the issue within an undistorted context of virtue.    

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[1] For an excellent analysis of Herbert Croly’s vision, advanced through his book, The Promise of American Life, see Pearson, Sidney, (2013, March 14), Herbert D. Croly:  Apostle of progressivism, Political Process Report, The Heritage Foundation.  Retrieved on May 20, 2018 from https://www.heritage.org/political-process/report/herbert-d-croly-apostle-progressivism

[2] See, for example, Strauss, David A., (2010), The living constitution, (New York, NY:  Oxford University Press).

[3] The legal requirement for this document was enacted by a Joint Resolution of Congress and as of today consists of 2,880 pages.  This document is available at https://www.congress.gov/constitution-annotated/

[4] Here are the original sources for the cited material:  American Council of Trustees and Alumni, To Reclaim a Legacy:  A Report on the Humanities in Higher Education, located at www.higher-ed.org/resources/legacy.htm; William Kilpatrick, Why Johnny Can’t Tell Right from Wrong:  And What We Can Do About It, (New York, NY:  Touchstone, 1992), p. 78; G. K. Chesterton, What’s Wrong with the World, vol. 4 in Collected Works (Ft Collins, CO:  Ignatius Press, 1986), p. 167; and John Stuart Mill, “Inaugural Address,” in Essays on Equality, Law, and Education, ed. John M. Robson and Stefan Collini, (Toronto: University of Toronto Press, 1984), p. 217.

Using the Constitution To Save America

by Paul S. Gardiner

Author's Note: The attention of many Americans currently is focused on Special Counsel Robert Mueller's investigation of Russian collision in the 2016 national election. Much attention also is devoted to allegations of various criminal actions being committed at the highest levels of the federal government. While these situations rightly warrant close attention, we Americans must not overlook nor minimize the importance of several serious, systemic problems that only the full use of the United States Constitution hopefully can fix. Two of these ongoing problems are (1) a monstrously growing national debt of over 20 trillion dollars; and (2) a deeply entrenched system of patronage and self-serving behavior exhibited by many long term members of the US Congress.  As explained herein, there is an urgent need for leadership and unity of effort to use a heretofore unused component of the Constitution to address and hopefully solve these problems as well as problems with the federal government egregiously exceeding its Constitutional authority.

        

Many Americans most likely will be surprised to learn that a very important component of the United States Constitution has never been used since the Constitution was written in 1787. If this component is used, it could very well solve several pressing problems that exist at the federal level of government.  But as the below narrative explains, there is tremendous opposition to the use of this particular Constitutional component by several groups, including many organizations funded by multi-billionaire and leftist George Soros and others like him who desire for America to go bankrupt and otherwise evolve into somewhat of a socialist state.  Opposition also comes from a few right-wing oriented groups for various reasons.

        

The unused component is embedded in Article V of the Constitution and relates to how state government legislators have inherent power, as described herein, to propose urgently needed amendments to the Constitution, especially critical amendments that members of the US Congress absolutely refuse to propose!

            Below are two examples where Constitutional amendments need to be proposed by state legislators:

            (1) America today has a national debt of over 20 trillion dollars! The interest that has to be paid on this amount of debt could soon amount to more than America's national defense expenditures---a totally untenable situation.  Exacerbating this problem is the fact that members of the US Congress refuse to move forward with an amendment to the Constitution requiring that the federal government fiscally constrain itself and responsibly operate on a bona fide balanced budget.

 

            (2)  Serving in Congress has become a long term, often self-serving profession rather than a privilege of public service and relatively short term civic duty as envisioned by America's Founders in 1787.  Back then, the average life span was approximately 50 years which means the Founders were not terribly concerned about people serving in Congress in their 70s, 80s, and 90s.  It is a known fact that various mental abilities usually diminish in older age, but yet there are many deeply entrenched, elderly people continuing to serve in Congress.  Members of Congress refuse to move forward with an amendment to the Constitution to limit the total number of years (12 to 15 years for example) that a member can serve.  Such an amendment should allow many more citizens to serve in the Congress hopefully with new ideas, greater energy, sharper minds, and much less indebtedness to various interest groups and donors.

   

Most Americans probably will agree that presently there is an overabundance of bitterness and divisiveness between many Republican and Democrat members serving in the US House of Representatives and US Senate.  Indeed, it is very wishful thinking to hope for a two-thirds majority of the members in both House and Senate (required to propose an amendment) to ever agree on any Constitutional amendment these days or in the foreseeable future.

Thank God the Founders of our great nation had the wisdom and foresight to prescribe a second method of proposing amendments to America's Constitution that is separate from and does not involve members of the US Congress.  This second method has never been used in over 230 years but now is the time to do so!  Article V stipulates that upon application by two-thirds of the state legislatures (34 legislatures today), Congress "---shall call a Convention for proposing Amendments---", commonly called a Convention of States.  The language in Article V makes it very clear that Congress must call this convention upon receipt of the 34 state legislature applications.  Neither the Congress nor any other part of the federal government will have any meaningful role in the operations of and outcomes of this state legislators' convention to propose amendments.  An essential "safety valve" against any rogue type amendment (proposed by Convention of States delegates) ever becoming part of the Constitution is the fact that a proposed amendment must be ratified by the full legislatures (some controlled by Republicans,   some controlled by Democrats) of at least 38 states to become part of the Constitution and law of the land. With the exception of Nebraska which has only one legislative chamber, all other states have two legislative chambers (House and Senate) meaning that any proposed amendment must gain a super majority vote of either 75 or 76 independent legislative chambers in order to become part of the Constitution.  This is indeed a very high bar to reach and thus, functions as a very effective safety valve against any rogue type amendment.

So, what is the current status of effort for 34 state legislatures to apply to Congress to call a Convention of States?  During 2018, there have been efforts by at least 10 different "grass roots" groups to have legislators in their respective states pass resolutions applying to Congress to call for a Convention of States.  The three most active, principal groups are US Term Limits, Balanced Budget Amendment Task Force, and the Convention of States Project.  During the past several years, there has been much duplicity of effort resulting in various state resolutions being submitted to Congress.  Some of the resolutions pertain only to one specific amendment while others pertain to multiple amendments.  None of these efforts in and of themselves have reached the threshold of 34 state applications, and it appears highly problematic that any ever will.  Unless something changes, a Convention of States may never happen, thus preventing and depriving the American people from using a very important element of their Constitution.

A major reason for the overall lack of progress in having state legislators apply for a Convention of States is the tremendously well funded opposition by groups such as the John Birch Society, Eagle Forum, Common Cause, National Association for Gun Rights, and some labor unions.

 

While many members of these groups are, no doubt, well intended, patriotic Americans who deeply care about America, there is strong evidence that multi-billionaire and leftist George Soros is funding many of these groups in one way or another.  This man and others like him desire for America to continue in its downward spiral to bankruptcy and ruin.  The above organizations falsely claim, for example, that state legislators are not capable of managing a Convention of States.  They falsely use the slur “con con” phrase to portray a Convention of States as a "Constitutional Convention" where a brand new constitution will be written.  While conveniently overlooking the ratification "safety valve" previously mentioned, they falsely state that a convention will result in a “runaway convention" thereby destroying the Constitution and causing the collapse of the country.  Regrettably, these "scare" type statements have turned many a state legislator against efforts to call for a Convention of States.

  

The above opposition coupled with the unsuccessful duplicity of effort among different groups desiring a Convention of States begs the question: is there a better strategy for seeking a Convention of States? This observer believes that indeed there is a better strategy, but it requires much cooperation, pooling of resources, and unity of effort among a majority of the groups pressing for a Convention of States.  It may be that a new entity is required (with no vested interest in any particular amendment) to provide the leadership and means to focus all resources and efforts to have at least 34 state legislatures apply for a convention.  As the saying goes, there is strength in numbers, and it is hoped that a pathway to such cooperation and focus in effort will soon emerge.

    

This observer believes that America most definitely needs a Convention of States as soon as possible.  There is so much at stake for the nation.  There is little risk and much to gain from having state legislators fulfill their duty to use their inherent authority in Article V of the Constitution to propose absolutely essential amendments. We John Q. Citizens need to demand nothing less from our state representatives; that they use the power granted to them by our forefathers in Article V!

We citizens also need to strongly encourage and support the close cooperation and focus of effort by a majority of the different groups desiring a Convention of States.  Such cooperation should allow them to pool their resources so that collectively, they can be an effective "fighting force" to overcome the very strong and well funded opposition mentioned above.

Paul S. Gardiner is a retired Army officer living in Hoschton, Georgia, and can be contacted at:  gardpgkg@comcast.net  

America's Titular Sovereign

            Old Gadfly:  Gentlemen, let me ask you a question.  Who has sovereign power in America?

            IM:  The answer is easy:  “We the People” as indicated in the first three words of our Constitution.

            Old Gadfly:  Is that true in actuality, or merely in theory?

            IM:  I think in actuality.

            Old Gadfly:  As in delegating enumerated powers to a National Government?

            IM:  Of course.

            Old Gadfly:  And members of our National Government have been disciplined to act only within the boundaries established?

            AM:  Of course not.  Just consider the growing Administrative State with over 460 agencies, 2.7 million unelected bureaucrats that impose a regulatory regime on millions of Americans.  This is one of the reasons our pocket Constitutions have been replaced with the Constitution Annotated, now nearly 3,000 pages long.  The Congressional Research Service is charged by law (a 1970 joint resolution by Congress with large Democrat majorities in both chambers) to periodically update this document with analysis and interpretations of Court rulings.  There is a growing progressive faction that believes it is far more expedient to “amend” the constitution through the court, which has been very deferential to expanding powers by the legislative branch.  In 2005, Roger Pilon gave compelling testimony to Congress  on this shift.  Even Constitutional scholars such as David Strauss argue for a “living Constitution” in his book  by the same title, whereby common law and tradition update the Constitution, which is very similar to the British system--a system with no “written” Constitution.

            IM:  But Article V of the Constitution establishes how “we the people” determined the Constitution would be amended.  How is the National Government getting away with its disregard for this sovereign power?  Have the people become titular sovereigns?

            AM:  Article V provides two methods for proposing amendments:  Congress can propose (it only takes one member  in either the House or Senate) and States can apply for a convention for proposing amendments.  Since 1789, more than 11,500 amendments have been initiated within the Halls of Congress.  Only 33 were actually proposed to the States, and only 27 of those were ratified by the States.  Congress has been very successful with its “pocket veto” in voting down any amendment that would take away any of its power, even if it is unconstitutional.  The second method has never happened, even though today, 41 of the 50 States have one or more active applications (about 275 total—see data provided by the Article V Library) for a convention.  The Constitutional language says, “on the Application of the Legislatures of two-thirds of the several States, [Congress] shall call a Convention for proposing Amendments.”  It does not qualify the type of application or assign any conditions in terms of what constitutes “an application.”  Once 34 or more States have passed a resolution or application, Congress is mandated (“shall”) to call a Convention for proposing amendments.  The language does not limit the convention to a single or specific amendment.  This decision rests with the delegates, commissioned by their respective States, assembled at the Convention.  State legislatures can further limit delegate authority in its commissioning language.

            IM:  Yet, there is a growing body of legal and scholarly literature that finds many issues with a simple and straight-forward reading of the language.  There has never been a Convention for Proposing Amendments; yet, the scholars will provide all sorts of “historical precedent” to complicate or discourage such a Convention.  Thus, academic and ruling elite have usurped the sovereignty of “we the people” in deference to a more enlightened oligarchy.  In actuality, “we the people” have become titular in effect.

            AM:  When do you think the intended sovereign will wake up?  Timothy Sandefur is the author of The Permission Society:  How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do about It (see here  for an excellent presentation on the book).    The thesis implied in the title is well supported in his set of evidence-based arguments.  Americans are losing unalienable rights.

            IM:  The Constitution was inspired by fundamental principles explicitly stated in our Declaration of Independence.  Jefferson cautioned future generations to have the courage to exercise their sovereignty in order to protect our unalienable rights:  “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

Old Gadfly:  The great peace and prosperity (Safety and Happiness) the vast majority of Americans enjoy today are Blessings of Liberty that many in our society take for granted.  Comfort breeds complacency, such that political factions seeking greater power are manipulating our political system via soft amendments (via court rulings) to shift sovereign power away from “we the people” to an enlightened ruling class.  History has recorded these transient failures for centuries.  These are the historical precedents that the enlightened ruling elite do not acknowledge or simply ignore.

AM:  We need a Convention of States for proposing amendments to restore sovereign power to the people.

Old Gadfly:  Yes, and I have confidence in the virtuous deliberations that would take place.  Given an event that stands to achieve a significant historical impact on the scale of the abolition of slavery, Convention commissioners would rise to the expectations, transparency, and accountably such an event demands.  We have far more faith in the decency and courage of “we the people” than our enlightened ruling elite.  The former seeks to protect our unalienable rights.  The latter merely seeks power.

Redemption

            Old Gadfly:  Gentlemen, it has been awhile since we have had a conversation; but, on this day, I want to greet you with the hope and joy that comes with recognizing what Easter is all about:  redemption.

            IM:  Thank you, Gadfly.  But not all people are Christian and may believe a risen Christ is mere superstition.

            Old Gadfly:  I agree.  Yet, even an atheist can appreciate the liberating effect of redemption from a secular humanist perspective.  The key is that humans must have the capacity to repent their evil doing and to seek forgiveness.  Christian Picciolini, a former neo-Nazi, is an excellent example (see his presentation here).  Nowhere in his talk does he mention religion.

            AM:  I watched Picciolini”s presentation and was struck by the conditions that enabled his attraction to the neo-Nazi movement:  a need for identity, isolation, loneliness.  This may explain why there is so much division in America today, especially the emphasis by some Americans on identity politics and diversity.

            Old Gadfly:  There is a lot to unpack in what you just said, AM.  Identity politics is a way to celebrate diversity, but this approach labels people as members of distinct classes (not unsimilar with the need to place people in racial or ethnic classes that fueled hate groups such as the white supremacist movement or even the Black Lives Matter Movement, Antifa, and so forth).  The notion of diversity has been politicized by progressive political elite who want to exercise power over others, in creating utopia this side of the grave.  For example, proponents of the Dewey educational philosophy support education as a means of creating instruments for social and political change.  I am not one of them because the justification for change is chosen by someone other than the individual--typically ruling elite.  We see this in the recent youth anti-gun movement following the Parkland shooting.  Think about it.  What fuels their anger?  It is the collective feeling that they are isolated from a system that will protect them against harm.  Where are the parents?  Rather, I believe education should be based on the simple meaning of its Latin root, educare, which means to draw out.  To me, this is what the power of diversity is all about--"drawing out" each individual's understanding and meaning of their respective living environments in order to contribute to progress of the human condition.  This is the "novelty" that can keep an environment dynamic and adaptive as it continues to emerge.  This is more of a natural science understanding of diversity that is mostly devoid of any political characteristics.

            “Drawing out” one’s capacity to understand and to discover meaning is very difficult when one is isolated and lonely.  Mass isolation and loneliness are conditions that lead to totalitarianism (as in Nazism and Communism).  Jon Miltimore provides an excellent explanation in his article, “How Totalitarians Weaponize Loneliness.”

            My good friend, John, who presents a formidable opposing view in our conversations, is a devout Catholic (and mentor).  In his compassion for Muslim neighbors who may feel isolated in our community, he has reached out to them by attending some of their prayer gatherings, meeting them where they are and respecting their God-given human dignity.  This is the type of redeeming behavior that Easter is all about.