Participants:
Series Code: LI
Program Code: LI190433A
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00:26 Welcome to the Liberty insider.
00:27 This is a program bringing you 00:29 news, views, discussion, and up-to-date information 00:32 on religious liberty in the US and around the world. 00:36 My name is Lincoln Steed, editor of Liberty magazine, 00:39 and my guest on this program is Attorney Sonia DeWitt. 00:44 Welcome Sonia. 00:46 You're an attorney as I said, 00:48 you're specializing in antidiscrimination cases. 00:51 Yes. 00:52 And I think your main claim to fame 00:54 from my perspective lately is you've written several 00:56 or a couple of very good articles 00:58 for Liberty magazine with more to come. 01:00 And this is the punishment 01:02 for getting involved with Liberty 01:04 that you could be on this program. 01:06 But I really want to talk to you 01:08 about a number of topics, 01:09 but on this program, 01:11 let's talk about the Supreme Court. 01:14 There are many ways you can come at it. 01:16 But the late Antonin Scalia, 01:20 who was a real personality, 01:22 I think even people that didn't follow the court 01:23 knew about Scalia. 01:25 He was an originalist, 01:27 original intent also he claimed, 01:31 he followed it literally. 01:34 And may be some problems with that, 01:35 some fallacies 01:37 that you can set yourself up for. 01:39 What do you think about that? 01:40 Is it a valid way to interpret the Constitution? 01:43 Well, it's an interesting point 01:45 because there are so many things 01:47 that have changed with the Constitution. 01:49 Particularly, the 14th Amendment is a big one. 01:53 But I think, in my opinion, 01:57 the whole philosophy has some serious problems. 02:02 First of all, 02:04 well, there are logistical problems in the sense 02:06 that nobody really knows what the original intent was, 02:10 because every person involved in drafting the Constitution 02:13 and then the people who ratified the Constitution 02:15 had different opinions. 02:17 So how you can find a quote 02:19 that will prove almost any viewpoint that you have, 02:22 because people had different viewpoints. 02:26 So that's one of the problems. 02:28 But the other problem 02:31 that I think is more philosophical 02:33 is that the founders of the country 02:37 were making compromises as we do politically today. 02:42 They were not following their vision. 02:44 But you're not saying that the Constitution itself 02:46 has it come from as well? 02:47 Ah, well, it depends on how you define that. 02:50 Yeah, that's what I mean. I want you to define. 02:52 Well, I mean, clearly, 02:55 practically speaking, that's true. 02:57 But that's not gonna give people security in the... 03:00 Well, it's... 03:01 In the baseline law of the land if it's a compromise document. 03:04 Yeah, first of all say 03:05 it was clearly a compromise document. 03:06 You know, for many people even on Christians, 03:08 this is pretty much secular amount to signing up. 03:11 Yes. 03:13 And that's another of the problems that... 03:15 But I will say that I think 03:18 that the Constitution was an incredible document. 03:22 I mean, particularly for its time period, 03:24 it was completely revolutionary. 03:26 There had been nothing like it in the history of the world 03:29 that I'm aware of. 03:30 What makes it... What's revolutionary about it? 03:32 Well, many things. 03:34 There's the emphasis, 03:37 they totally ended the power structure. 03:39 The traditional power structure that the divine right of kings, 03:45 the top down power structure... 03:48 Now, there's people that are... 03:50 They up ended it 03:51 and put the power at the bottom with the people, 03:54 which is a completely revolutionary concept 03:57 that had never really been implemented 03:59 in government before. 04:02 And the other obvious innovation 04:05 was separation of church and state, 04:07 which had never really existed in a government before. 04:11 The idea that the state and the church were separate, 04:14 they were not supposed to meddle with each other. 04:18 Even many people in the country, 04:21 in the US at the time were concerned 04:24 about how you can have a government 04:25 without the church being involved. 04:28 So the idea that 04:32 the church and state would be separate 04:35 was a really revolutionary concept. 04:38 As you're saying that 04:39 what strikes me is the part of the revolutionary 04:41 or the change model was pretty much before that. 04:47 Countries were either a people group, 04:50 which easily came with a certain religion, 04:52 or an empire where people were coupled together 04:55 under this superpower. 04:56 But here, for the first time 04:58 people have been cut loose from all the old models 05:00 coming into the new world. 05:03 They didn't have a king 05:05 or at least the throne of the king. 05:07 They were so many different religious viewpoints, 05:09 there was no common one. 05:11 So they were almost forced 05:13 to reach out in the direction they did. 05:15 So yes, I think in many ways, 05:18 the Constitution was a remarkable document. 05:21 I think that the people who've founded this country 05:24 were geniuses of a very high level 05:27 but having said that, they were not deities. 05:30 They were not imperfect and they very well knew it. 05:33 They knew that what they were doing was a compromise. 05:36 Particularly, 05:37 the biggest example is the issue of slavery. 05:40 Many of the... 05:41 Even the slave owners 05:43 among the founders knew that slavery was wrong. 05:45 They knew it's going to cause huge problems. 05:47 In fact, there's a quote from Jefferson saying, 05:50 you know, "I tremble, because God is just 05:53 and He's not going to basically allow that to continue." 05:58 He knew it was wrong. 06:00 And many of the founders knew it was wrong. 06:02 But it was so integral to their financial system 06:06 that they didn't really know what to do about it. 06:08 So they punted it down on the road. 06:09 Well, it was Jefferson complicated the issue 06:11 with Sally Hemings a little bit. 06:14 Well, that's another story. And her sister's husband. 06:18 That's another issue altogether. 06:20 But yes, that was not uncommon at the time. 06:23 And my personal opinion is that they loved each other that... 06:27 Oh, yeah. I mean... 06:29 But... I'm making light of it but... 06:31 But that's a separate issue. 06:35 And also the issue of the fact that Jefferson later went on to 06:40 espouse slavery more and more closely, 06:43 as he began to realize how profitable it was. 06:46 But that's another issue. 06:48 But, you're right, what you're getting at is, 06:52 I think, for different reasons 06:56 some of the founders and the framers 06:58 had sort of suspended some of their personal views 07:02 with the need for a common unity 07:05 and a single structure work for anyone. 07:07 Right. 07:08 Well, and they also suspended their ideals 07:11 for a real world compromise that could actually get past. 07:15 Remember when the Constitution was adopted, 07:20 when they went to the Constitutional Convention, 07:22 nobody was intending to create a Constitution. 07:25 They were intending to revise the Articles of Incorporation. 07:29 And that was a very different thing. 07:33 Because the Articles of Incorporation had, 07:35 the states had all the power, and they were just... 07:37 It was kind of like the UN, 07:39 there was no real central power. 07:42 So when they created the Constitution, 07:45 they had to think about how it was gonna be ratified, 07:48 because the states really 07:49 didn't intend this to happen at all. 07:51 They saw themselves as sovereign entities, 07:53 didn't they? 07:55 So you're getting into something 07:56 that interests me. 07:58 What do you think convinced sovereign states 08:01 to give away an element of their sovereignty? 08:04 Well, I think it was practicality. 08:06 I mean, their financial system was a mess, 08:09 they had different currencies, 08:11 they couldn't really trade with each other, 08:15 there was kinds of issues and then there was the issue 08:17 of how do we defend ourselves. 08:20 Because even during the revolution, 08:22 getting people to join the army was a real trick 08:24 and then paying them after they joined the army. 08:27 So there were a lot of practical reasons 08:29 why they needed a central government. 08:32 They were just afraid of it 08:33 because of their experience with England. 08:35 So my view is that 08:42 they did make a lot of compromises, 08:44 moral and otherwise. 08:45 And they knew they did. 08:47 And I think that 08:50 to look at the... 08:55 As the originalist, 08:57 particularly on the Supreme Court do 08:59 to look at the founders as secular deities, 09:04 who were all knowing and all wise. 09:07 And we have to study their words 09:09 like they're the Holy Bible, 09:10 and it's kind of a strange viewpoint. 09:17 Yeah, and you wouldn't know that from Washington 09:19 because the statues of Lincoln and Jefferson 09:25 loom pretty big. 09:27 Well, they were great men. 09:28 You know, they and... 09:30 There's no question that they were great men, 09:32 they were also flawed men. 09:34 And they knew that they had made compromises 09:37 that they didn't think were ideal. 09:41 But I think that they were hoping that we, 09:46 their posterity would remedy the flaws 09:50 that we would have more courage than they had. 09:52 And that's what in discussion before this, 09:55 I was mentioning a comment by Jefferson, 09:58 where he sort of prevue the idea of an inflexible 10:02 unchanging Constitution. 10:03 And he said something to the effect 10:05 that you might as well wear the same clothes 10:06 as when you're a child as when you're an adult. 10:09 And I think he mentions in our days of primitivism 10:14 that we should move with the times. 10:16 Now, you know, that's sort of dangerous 10:17 because while there are people 10:19 that buy into the living Constitution idea. 10:22 I think it's patently obvious 10:24 that if you see the Constitution 10:27 as a starting point, then where are you? 10:29 You're not really on any guideline, 10:30 you're just doing what you want. 10:32 And that's what the originalists are reacting to, 10:35 I think the idea that... 10:36 Let's make it up as you go long term. 10:38 Right, right. 10:40 And just to back up a minute, 10:42 I wanted to say what Jefferson said to Adams when they... 10:46 During the Constitutional Convention, he wasn't there. 10:49 He was the ambassador to France at the time, 10:51 but he was writing to Adams 10:53 to keep an eye on what was going on. 10:55 And one of his brilliant ideas was 10:57 that we should have a new Constitution 10:59 every 20 years, 11:00 because every generation should be able to create 11:02 its own Constitution, 11:03 which as you can imagine, 11:05 Adams was just like, 11:08 what are you talking about? 11:10 But that gives you an idea 11:12 of what Jefferson thought about originalism? 11:14 So let me tell you what I think on the Constitution, 11:17 I think the... 11:19 Not so much unique, 11:20 but the powerful part of the Constitution 11:24 is it's so aspirational. 11:26 Not all of it, in fact, 11:28 in many ways the better parts of the amendments, right, 11:31 the Bill of Rights? 11:32 Right. 11:34 But it did sort of strike in a direction 11:37 that most governments were not even thinking of. 11:40 And it opened up great possibilities 11:45 for future development. 11:47 And religious liberty is the one we're interested in. 11:49 And I take that as an aspirational statement 11:51 that here is a government 11:53 that's gonna allow you to worship any way you want 11:55 or not to worship and won't be in the business. 11:59 It's imperfectly applied at different times 12:01 but it's a wonderful ideal. 12:03 Well, it is. 12:04 And I think we're gonna be talking about that more later. 12:07 But what was standing in the way 12:10 at the time with the states, 12:12 and they weren't going to meddle 12:14 what the states were doing, 12:15 because as some of the states had established churches, 12:18 and at that time there's... 12:19 Maybe we can talk a little bit more about that. 12:20 Yeah. 12:22 You know, I do believe in separation of church and state. 12:24 I think it's a proven model for the US. 12:28 And we argue that Liberty magazine and separationist, 12:33 but there is a fly in the ointment, 12:34 the establishment situations in different states. 12:39 I think on one level, 12:41 what passed on the federal level was done 12:44 with a tacit agreement 12:45 that the states would still be allowed 12:47 to do what they want on establishment. 12:50 Well, yes, technically. 12:53 But yeah, 12:56 we'll get into more of the technical aspects likely. 12:59 You don't know when we gonna get into, 13:02 I can stare you. 13:04 But if you like to, 13:05 we can discuss that a little bit further. 13:07 Why don't we take the break right now, 13:08 and we'll come back and continue 13:10 this dynamic discussion of the Constitution 13:13 from an originalist point of view. |
Revised 2019-05-10