Participants: Lincoln Steed (Host), J. Brent Walker
Series Code: LI
Program Code: LI000242B
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00:06 Welcome back to the Liberty Insider.
00:07 Before the break with guest Brent Walker 00:11 among other things we'd settled 00:12 on a bit of a discussion of something 00:14 that I have heard lot lately and in fact 00:15 more and more the common good a term 00:18 that something is for the common good. 00:20 Right. 00:21 And I was saying that should stay-- 00:24 what I would call majoritarian principle. 00:26 You know, in a democracy 00:29 or in a constitutional republic more specifically 00:33 usually that what the majority say is just 00:36 how we resolve issues in conflict 00:40 but when it comes to the rights of conscience 00:43 and the right to insist that the government 00:46 does not take sides in matters of religion 00:48 or favor one religion over another. 00:52 You know, that idea is counter majoritarian. 00:53 Yeah, you are right. 00:54 It's there to protect the rights of the minority. 00:57 It even on the US as the whole. 01:00 And I have, I mean you are a lawyer 01:01 and I can't really presume to tell you. 01:04 You have been a lawyer, you're lawyer anytime. 01:07 But I studied American government with great interest 01:10 and it seems to me that most of the, 01:13 the founding fathers had a deep fear of majoritarian tendencies. 01:18 It wasn't that it was included. 01:20 They saw it as a danger and remember 01:23 that they were looking at what eventually 01:26 and if he is late up build up in the French revolution 01:29 with the tyranny of the, of the mob 01:32 that horrible directions. 01:33 So the, yes the peoples voices to be heard in the United States 01:38 but everything from the presidential election. 01:40 Because every year I, every year election 01:42 I listen to this in it aggravate some people 01:45 that the majority seems to be disregarded. 01:47 The whole structure is to defuse the majoritarian view. 01:50 If it was the majoritarian view 01:52 none of our presidential elections 01:54 would turn out the same way in my view 01:55 because of the huge population centres 01:57 if I would just numbers would think 01:59 very differently than Middle America. 02:01 But it's to spread the view 02:03 to have a representative opinion. 02:06 And our goal it would have been president, right? 02:07 Absolutely, whether that would have been good. 02:10 Who know, it might be yeah, exactly. 02:12 The ozone layer might be different. 02:13 I don't know. 02:14 But he got the majority of the Bush. 02:15 Internet when had been invented. 02:17 Yes then getting the White House. 02:19 Now I don't think it's a bad thing or a good thing 02:22 it's just a, its just well, 02:24 it has implications 02:25 but it is a plain fact of history 02:27 that representative government is not same as, 02:29 as the role of the majority. 02:31 You're right. 02:32 You would hope that it doesn't in its largest sense fly 02:36 in the face of the view of the majority 02:38 then you can insipient revolution on your hands. 02:41 But it's on as you said on religious liberty 02:44 this is where a particularly 02:46 it can protect the minority against the majority. 02:50 Yes, yeah and at the risk of being too loyally on this 02:53 I like to think of the constitution 02:56 as being a majoritarian document because it does cough war. 03:01 Well its ratification of course. 03:02 Yes, but even within the forequarters 03:05 of the constitution 03:06 you have got checks and balances 03:08 and separation of powers 03:09 and all kinds of anti majoritarian 03:12 checks and hedges. 03:16 But they think of the bill of rights as the, 03:19 the anti majoritarian document 03:22 that counter opposes the majoritarian 03:25 features of the constitution. 03:27 And those rights outlined in the bill of rights 03:30 are counter majoritarian. 03:32 They depend on the world of no majority 03:35 for their effectiveness. 03:36 So there're two documents kind of go together very nicely. 03:38 It dwells me a little at a recent program 03:42 I did get on to this but one of the most shocking things 03:46 that I have observed in recent years 03:48 was that public reading of the constitution 03:50 by the legislators did you see that. 03:52 I have seen that. 03:54 I'm still really from that. Sure. 03:57 It was abundantly clear that at least of those participants 04:01 there were many huge number of them 04:04 didn't seem to be very familiar with, 04:06 with the language they misquoted, 04:08 they misread, they repeated, they omitted, 04:13 you know, I think if I was their grade school teacher 04:15 I've been not impressed. 04:17 See it would be a high remark. 04:20 Well, you know that we're all individuals 04:21 and I'm sure I could be critic on it 04:24 but these are the once with the public trust 04:27 and it troubles me that clearly 04:29 a public understanding 04:33 of the constitution is not that high. 04:35 And its interesting point 04:37 I have never heard it before about the amendments 04:39 and I think you're right. 04:40 That these are more even though 04:42 they grant their rights by granting and this was, 04:44 Madison's problem he felt that 04:47 there were so self-evident but the state them limited them. 04:49 Right. 04:51 But in a way they're describing 04:53 they're circumscribing some of the rights. 04:55 But I don't think most people are aware of the constitution 04:59 and I think it's a unique document 05:01 but it's also a spirit of exemplifies the time. 05:04 It has in it superseded by an amendment. 05:07 Has slavery proportional voting of individuals. 05:12 It, it has some really arcane stuff 05:14 and you should remember better than me 05:15 but limit on damages in a court case 05:19 and it gets a five-ten dollars or something. 05:22 So people are missing a lot of the point 05:25 and I think we're trying to bring it out. 05:27 Yes, this is a document but what does it stand for? 05:30 What was the intention? 05:31 What was the mindset that went into it? 05:34 Yeah. 05:35 And we're losing the mindset 05:37 and that's what makes me afraid 05:38 for religious liberty in particular. 05:41 It's fine to pass out 05:43 what the first amendment means. 05:45 But if you have to pass it out too much 05:48 that in itself is a problem. 05:49 Because I think back when this was first formulated 05:53 people had a more visceral sense 05:55 of more cherished concept of religious liberty. 05:59 Yeah, because they live-- 06:01 And it's true. 06:02 And the case is under the deprivation. 06:03 Absolutely. 06:04 Of liberty so they understood it 06:05 like our early Baptist fore barriers existentially 06:08 because their experience is not just in theory 06:10 or ill-defined fear 06:13 or it is out there at some place. 06:14 No, it was really-- 06:15 It was really and so you can understand that but, 06:17 that's adding with all the works in shortcomings 06:21 that one can put on the constitution. 06:25 It has to lie for 225 years and then done a pretty good job 06:30 and there's been a lot of amendments of course 06:34 but not that many. 06:35 I mean, if you're freedom for more than two centuries 06:38 to have two dozen amendments that's not, not many. 06:41 And two of them, one have to bring in something 06:44 and one was to undo the amendment. 06:46 Take it out, right. 06:47 But a couple of times I have heard Antonin Scalia 06:51 get on his hobby horse 06:52 and he hasn't several of them well he has several of them 06:55 but while riding the different ponies 06:59 he makes a good point. 07:00 That if you really object to something 07:02 don't try to twist the law bring it in an amendment. 07:06 We tend to think of constitution as inflexible 07:10 for all of time but there is process 07:12 where it can be adjusted 07:14 but it should never be adjusted 07:15 departing from the basic principles. 07:17 Yeah. 07:18 And I know my own church 07:19 when I was growing up we had a great fear 07:22 that a constitutional amendment 07:23 might undo the religious liberty protections and it could. 07:27 But I think the greater danger is the shifting public view 07:30 while the constitution remains nicely on display. 07:33 We just go in other way. 07:34 All right. 07:36 That's really what I see in society. 07:38 Yeah, I think the principles needed to be preserved 07:40 and of course if you want to make 07:42 drastic changes in the constitution, 07:43 the constitutional amendment process is available 07:46 but you and I know that's a very complicated. 07:49 Yeah, so in three fourths of the states to get it, 07:51 to get it ratified. 07:52 But that's right I do think 07:55 that there is some flexibility in the constitution 07:58 and in the bill of rights. 07:59 They're not a set of wooden rotary bylaws. 08:03 You know, there are statement of principles 08:06 that they're need to be shaped 08:08 and defined within some limits 08:10 but still modified as we go through different time periods 08:14 and different circumstances 08:15 and I think there is some flexibility there. 08:17 And it's not just that we change. 08:19 The dynamic of the world around is little bit different. 08:22 So that needs to be better. 08:23 We don't have much time left in this program 08:25 but we have been talking about the Supreme Court 08:27 on this Athens case. 08:30 I'm afraid that it might intersect 08:33 perhaps not favorably with one of the other decisions 08:36 these Citizens United case that held 08:38 that cooperations they're alike individuals. 08:42 Do you think that has any ramifications? 08:43 No, I don't much like the Citizens United case 08:48 for practical reasons of the electoral process 08:52 that it deals with. 08:53 Well, yes its feud the-- 08:55 But it said, you know, 08:56 that cooperation said freedom of speech 08:59 and that's a pretty remarkable outcome. 09:05 I don't think it is going to be 09:07 too much involved in Greece case. 09:09 Well, I hope no. No, yeah. 09:11 But I don't know we have even this relationship 09:12 but I can't resist quoting from animal right. 09:15 Remember all animals are equal 09:16 but some animals won't. 09:17 It may be a little bit involved in the, 09:20 the Affordable Care Act case with, with. 09:21 It's true. 09:23 Contraception issue that may be another program too. 09:26 I think we should discuss this. 09:27 Yeah, so but, you know, 09:30 the Supreme Court is an important 09:36 head of the third branch of government. 09:38 Right and let's would say, 09:39 you know, there is a lot of talk about 09:40 legislating from the bench. 09:41 Well, I mean that's a-- 09:42 that's pejorative sort of a take on it 09:45 but it's a legitimate branch to come. 09:47 Yeah, but it is a legitimate branch 09:49 and as long as their old functioning fully they, 09:52 they can work to protect freedoms or, 09:56 or one can counteract 09:57 the problematic tendency of the other. 09:59 Yeah, yeah absolutely so. 10:01 But this Athens case is definitely interesting isn't it. 10:05 In a very interesting fact, 10:09 factoid if you about the United States Supreme Court 10:12 today is for the first time in 225 years 10:16 there are no protestants on the Supreme Court. 10:20 Yeah, six Catholics and three Jewish justices, 10:23 that's a remarkable event. 10:26 Public prayer definitely has its place 10:30 as anybody that has read the Old Testament record 10:32 or Solomon's Grand in moving prayer 10:35 at the dedication of the temple. 10:37 When he prayed to the Lord and said 10:38 if thy people who have sinned come to thee 10:42 and repent then open heaven, open the windows of heaven, 10:46 the rain and all of these bounties. 10:48 Its inspiring but I must say 10:51 when we're dealing with a modern civic 10:54 or civil state 10:56 when a politician or indeed 10:57 even a religious leader stands up 10:59 and intends the sort of public prayer 11:02 that is demanded these days a prayer 11:05 that the Supreme Court would call ceremonial deism 11:09 just empty phrases about a generic God, 11:12 nothing much has gained for spiritual statement 11:16 and everything is risked 11:17 for a compromise between the rights and prerogatives 11:20 of church and state. 11:23 These cases are before the Supreme Court now. 11:26 Again present a Gordian knot 11:29 but if we look at the principle of prayer 11:32 may be not so much after all, 11:35 empty prayers God doesn't listen to, 11:37 sincere heartfelt prayers are sweetness to Him. 11:42 For Liberty Insider I'm Lincoln Steed. |
Revised 2014-12-17