Welcome back to
the Liberty Insider.
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Before the break with
my guest, Sonia DeWitt,
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we were really getting ourselves
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into some interesting
territory on originalism and,
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of course, the opposite
is the living Constitution
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and what was really going on
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in the formulation
of the Constitution.
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And I think you and I agree
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that the best parts
of it were aspirational,
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these high
ideals that exemplified
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even though individually
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they might have had
some different takes on it,
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but all together,
it was a fine document.
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Yes, yes, definitely.
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Although it was also a document
of its time and therefore,
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if you look back to,
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for example,
there was a recent case
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about cruel and
unusual punishment.
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And the court said
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that they're under
an originalist analysis
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that they can
execute a prisoner in a way
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that would
cause him extreme pain
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and basically be torturous.
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And that probably
would have been the case
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under the original Constitution
because the ideas of,
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although the founders
were advanced for their time,
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the ideas of
crime and punishment
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were in some ways
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what we would
consider somewhat barbaric.
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Well, George Washington,
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reading his
biography a couple of times,
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he had soldiers
under his command,
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given 1000 lashes.
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Well, also at the
time of the Constitution
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and the death penalty
was available for many crimes
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and not just for murder.
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So if we are going
to go back to that,
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we would go back to things
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that we at this
time would consider,
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you know,
barbaric and primitive.
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And there are other examples,
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particularly with
regard to religion
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as I mentioned before
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state establishment was accepted
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by the Constitution.
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Because in my opinion,
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primarily because the
states had it already,
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and they weren't going
to allow the Constitution
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to meddle with what
they were already doing.
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Well, and the
obvious thing is that
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there never would
have been the Constitution,
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if they'd been an
attempt to tell at that time
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to tell the states
what they could do it.
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Well, exactly that they were...
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It was a hard idea to get across
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in the first place to
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and then they had to go
through the whole discussion
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about the Bill of
Rights, which some of the...
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Nobody argued that
the Bill of Rights,
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the concepts of
the Bill of Rights
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were not a good idea.
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They were
concerned about the fact
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if we enumerate our rights,
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then anything else is
not a right and then that...
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That was Madison particularly,
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he didn't want them even
though he was the father of them
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for that same reason
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that it really gave leeway
to the federal government.
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He didn't want
it to have any power
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except what was given to him.
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Well, he also
didn't want to say that
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because this right is
not specifically enumerated,
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we don't have that right.
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Yeah, that's my point.
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And that's...
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It only has what
it's given to it.
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You know, that
in the modern era,
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we've turned it around that
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the state really
gives rights to us
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rather than we
giving power to the state.
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Right.
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It's only to do
what we say it can do
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and beyond that it
should go no further.
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So a lots changed in
the interim in my view,
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even though we
still have in the US
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the same final document.
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And if we look closely,
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the principles I
think are relatively intact.
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But you mentioned it's
a document of its time.
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What I laugh at
every time I hear people
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sort of extolling it
like a document for the ages.
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You go in there
and it actually gives
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the dollar amount
that you can be sued.
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Five dollars to start, isn't it?
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I don't remember
that someone claimed.
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Yes, he does.
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But yes, there are some
very dated things about it.
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But the concepts,
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it's pretty clear that
the founders were agreed
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on certain primary ideas.
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On self determination,
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you know, the
rights of individuals.
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The fact that the...
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The people were the
source of government power.
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You know, basically
separation of church
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and state was widely accepted,
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although not
universally at the time.
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In fact,
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I think that
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the idea of establishment
was a dated idea at that time.
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People were moving away
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from the idea
of staff rebellion.
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But why?
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I tell you why I
think the reason was.
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There was the
rebellion against England
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and England had an
established Church of England.
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And so of necessity
severing from England,
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cast into
disrepute that entire church
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because to this day,
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it's not called
the Church of England
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in the US, it's
Episcopal Church.
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Right.
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Well...
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So it's just almost unacceptable
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to acknowledge that
it's an English church.
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Well, that
certainly was part of it.
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But it was a lot closer to
home because people had seen,
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particularly the
Virginia Declaration of Rights
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was the first really
statement of separation
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of church and state.
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Yeah.
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And they made their judgment
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based on what was happening.
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Baptist ministers were
getting chased out of town,
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they were getting imprisoned.
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There was a horrible
things going on against people
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who didn't subscribe
to the established church,
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the Church of
England in Virginia.
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So that led
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to the first really codified
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statement of
separation of church and state.
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So and then...
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It's an argument that
catch both ways though.
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What you say is evidence
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that they liked
establishment too.
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That in different areas
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the established church was there
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and if you are a freelancer
because going further back
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the Quakers and all the
rest, they would be harassed.
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You were not seen
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as the true
embodiment of the community.
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But that's what the founders
were trying to get away from.
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I think they were.
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They had seen
the abuses of this,
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that system and the
same thing with the Puritans
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in New England.
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There was a lot of
persecution of people.
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In fact, people
were actually executed
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for not being part
of the Puritan church.
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Well, Quakers were...
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Yeah, Quakers were
executed in New England.
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Right.
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So there were lot of
abuses of establishment
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and they'd seen that
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and they
realized that this was not
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what they wanted
for their free society.
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But they couldn't
just go and say, okay,
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you know, it's over with.
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Because, but what you see
is over the next few years
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the official
state establishments
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actually declined significantly.
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People didn't like them anymore.
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They didn't want them anymore.
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The last one was Massachusetts,
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disestablished
officially in 1833.
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That wasn't the
end of establishment,
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but it was the end of
official establishment.
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And, you know, in
all of these discussions,
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there's so much going on.
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And I think a lot of
what happened in the US
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and then later in
Europe was almost foreordained
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as this was a
restructuring of people
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moving from the country,
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into the
cities, more fluid jobs,
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the dynamic of industrialization
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weaken the power
structurally of the church,
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and emotionally
people didn't have the ties
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and they could not be ordered
by the state the same way.
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And so in the US that
happened the knife throws
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or a knife cut,
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where at the one
time you're cutting loose
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from the Church of England,
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and from the
government of England.
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And so this developing idea
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of individual self-determination
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was writ large
into the Constitution
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which is very good document.
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Well...
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They had respect for religion,
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but it's a very hard
sell on the founders,
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with few exceptions
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to make them out
as religious icons.
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They were
nominally religious deist,
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which was the acceptable
form of basically not an atheist
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but a secularist of that time,
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they were not highly
religious people at all.
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Most of them weren't.
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No. Adams was pretty religious.
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Yes, and of course,
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Patrick Henry, that
we quoted all the time,
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who was actually
on the losing side
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of most of this argument.
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I mean, he was
the ultra conservative
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religious guy.
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But in terms of the issues
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that caused them to
go toward separation,
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I think there are
two separate streams
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of philosophy in
American history.
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There's the Enlightenment,
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which was heavily in
Jefferson and Madison,
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and many of the
founders were heavily influenced
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by the Enlightenment,
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which was more or
less a secular movement.
00:09:11.61\00:09:13.58
But then there was also
the separation on philosophy,
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for example, Roger Williams
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that went in the religious area.
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So these two twins...
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And as I told you privately
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Roger Williams is
the Puritan connection.
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And the Puritans, remember
were always non mainstream
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as far as establishment
views with the government.
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And this was pretty much
work out your own salvation
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with fear and
trembling through godly living
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and an upright life.
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So that meshed in
my view beautifully
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in this new world
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when they
separated from England.
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It was already made toward
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and that meshed with the
Enlightenment principles,
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and we have the Constitution
and the Bill of Rights.
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And it was the
spirit of its times,
00:09:57.56\00:09:59.06
but I think the
history of the US made a gel
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in a way that it
couldn't anywhere else.
00:10:02.33\00:10:04.13
And just as a side note,
00:10:04.17\00:10:05.57
Roger Williams was the one
00:10:05.60\00:10:07.00
who created the
term wall of separation.
00:10:07.04\00:10:10.67
Yeah.
00:10:10.71\00:10:12.04
So he was the
original the wall between the,
00:10:12.07\00:10:16.58
the garden of the church
and I forget the rest of it,
00:10:16.61\00:10:19.45
but he basically that
00:10:19.48\00:10:21.75
if his viewpoint was if
church and state are joined,
00:10:21.78\00:10:25.69
it corrupts the church.
00:10:25.72\00:10:27.06
Yeah.
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And that was
his primary concern.
00:10:28.46\00:10:29.79
Yeah.
00:10:29.82\00:10:31.16
No, and that's a good point
00:10:31.19\00:10:32.53
that we need our viewers to say.
00:10:32.56\00:10:33.90
We're often
mentioning Jefferson's language
00:10:33.93\00:10:35.26
in the Virginia statute.
00:10:35.30\00:10:36.63
Which I think
is relevant legally
00:10:36.67\00:10:38.00
when you're trying to
compare to the Constitution,
00:10:38.03\00:10:39.47
but as far as an origin of it,
00:10:39.50\00:10:41.37
it predates a long way
00:10:41.40\00:10:43.67
and it goes back to
Roger Williams, isn't it?
00:10:43.71\00:10:46.78
So, you know, what your
takeaway on originalism?
00:10:46.81\00:10:50.65
You think it has a future
00:10:50.68\00:10:52.21
or are we destined to go forward
00:10:52.25\00:10:55.62
live in Constitution.
00:10:55.65\00:10:56.99
I would like to say
its time has come and gone,
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but unfortunately in
the current environment,
00:10:59.65\00:11:01.62
it appears that it is
more relevant than ever.
00:11:01.66\00:11:04.89
And that is a
concern on many levels.
00:11:04.93\00:11:08.06
But I think the takeaway is that
00:11:08.10\00:11:11.90
I don't believe
00:11:11.93\00:11:13.27
that the founders
of the Constitution
00:11:13.30\00:11:15.30
intended for us to
read every single word
00:11:15.34\00:11:19.41
and decipher it.
00:11:19.44\00:11:21.74
I think that there were certain
overall overarching principles
00:11:21.78\00:11:26.72
that they wanted
us to keep in mind,
00:11:26.75\00:11:28.85
the freedom of the individual,
00:11:28.88\00:11:30.52
freedom to
worship all of the rights
00:11:30.55\00:11:33.19
in the Bill of Rights.
00:11:33.22\00:11:34.59
Those were intended
to apply to everyone
00:11:34.62\00:11:39.96
throughout American history.
00:11:40.00\00:11:42.03
And the founders didn't believe
that they had the end road
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in what a good government is.
00:11:47.04\00:11:51.77
They believed
that it was important
00:11:51.81\00:11:55.38
for people to work out
their own government overtime.
00:11:55.41\00:12:01.25
I think it was T.S.
Eliot in The Waste Land
00:12:01.28\00:12:04.39
that made a
comment about in a moment
00:12:04.42\00:12:06.15
you can make a decision
and reverse your decisions
00:12:06.19\00:12:09.16
and flip flop mentally
00:12:09.19\00:12:11.46
to reach some grand
and overwhelming question.
00:12:11.49\00:12:15.56
There's no question in my
mind that the Supreme Court,
00:12:15.60\00:12:19.13
at least an aspect
of thinking about it,
00:12:19.17\00:12:21.20
in reaching
toward original intent
00:12:21.24\00:12:24.47
is playing with the
same indecisiveness.
00:12:24.51\00:12:26.94
Who could know
00:12:26.98\00:12:28.31
what was in your
own mind yesterday,
00:12:28.34\00:12:30.61
let alone what was in the mind
00:12:30.65\00:12:33.11
of the framers
of the Constitution.
00:12:33.15\00:12:36.75
There is some
safety in knowing history.
00:12:36.79\00:12:39.15
There is some safety in
knowing the Constitution.
00:12:39.19\00:12:42.86
There is some safety,
00:12:42.89\00:12:44.63
a lot of safety in having
a sense of internal morality,
00:12:44.66\00:12:48.83
and fairness, and justice.
00:12:48.86\00:12:50.93
And while this is
not a Christian nation,
00:12:50.97\00:12:53.03
there is
absolutely an imperative
00:12:53.07\00:12:56.07
to be familiar
with the great judge,
00:12:56.10\00:12:58.91
the great court
00:12:58.94\00:13:00.28
and the
responsibility we all have
00:13:00.31\00:13:01.81
before the
Creator of the universe.
00:13:01.84\00:13:04.45
For Liberty insider,
this is Lincoln Steed.
00:13:04.48\00:13:07.55