Participants:
Series Code: LI
Program Code: LI190433B
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00:04 Welcome back to the Liberty Insider.
00:05 Before the break with my guest, Sonia DeWitt, 00:09 we were really getting ourselves 00:11 into some interesting territory on originalism and, 00:15 of course, the opposite is the living Constitution 00:18 and what was really going on 00:19 in the formulation of the Constitution. 00:22 And I think you and I agree 00:23 that the best parts of it were aspirational, 00:26 these high ideals that exemplified 00:29 even though individually 00:30 they might have had some different takes on it, 00:33 but all together, it was a fine document. 00:37 Yes, yes, definitely. 00:39 Although it was also a document of its time and therefore, 00:42 if you look back to, 00:46 for example, there was a recent case 00:48 about cruel and unusual punishment. 00:50 And the court said 00:54 that they're under an originalist analysis 00:57 that they can execute a prisoner in a way 01:01 that would cause him extreme pain 01:03 and basically be torturous. 01:07 And that probably would have been the case 01:09 under the original Constitution because the ideas of, 01:13 although the founders were advanced for their time, 01:16 the ideas of crime and punishment 01:20 were in some ways 01:22 what we would consider somewhat barbaric. 01:24 Well, George Washington, 01:26 reading his biography a couple of times, 01:28 he had soldiers under his command, 01:31 given 1000 lashes. 01:32 Well, also at the time of the Constitution 01:37 and the death penalty was available for many crimes 01:40 and not just for murder. 01:42 So if we are going to go back to that, 01:45 we would go back to things 01:47 that we at this time would consider, 01:50 you know, barbaric and primitive. 01:52 And there are other examples, 01:55 particularly with regard to religion 01:57 as I mentioned before 01:59 state establishment was accepted 02:01 by the Constitution. 02:04 Because in my opinion, 02:06 primarily because the states had it already, 02:08 and they weren't going to allow the Constitution 02:10 to meddle with what they were already doing. 02:12 Well, and the obvious thing is that 02:15 there never would have been the Constitution, 02:17 if they'd been an attempt to tell at that time 02:19 to tell the states what they could do it. 02:20 Well, exactly that they were... 02:23 It was a hard idea to get across 02:25 in the first place to 02:27 and then they had to go through the whole discussion 02:29 about the Bill of Rights, which some of the... 02:32 Nobody argued that the Bill of Rights, 02:36 the concepts of the Bill of Rights 02:37 were not a good idea. 02:38 They were concerned about the fact 02:40 if we enumerate our rights, 02:41 then anything else is not a right and then that... 02:45 That was Madison particularly, 02:48 he didn't want them even though he was the father of them 02:51 for that same reason 02:53 that it really gave leeway to the federal government. 02:56 He didn't want it to have any power 02:57 except what was given to him. 03:00 Well, he also didn't want to say that 03:02 because this right is not specifically enumerated, 03:05 we don't have that right. 03:06 Yeah, that's my point. 03:07 And that's... 03:09 It only has what it's given to it. 03:13 You know, that in the modern era, 03:15 we've turned it around that 03:17 the state really gives rights to us 03:20 rather than we giving power to the state. 03:23 Right. 03:24 It's only to do what we say it can do 03:26 and beyond that it should go no further. 03:28 So a lots changed in the interim in my view, 03:30 even though we still have in the US 03:32 the same final document. 03:34 And if we look closely, 03:36 the principles I think are relatively intact. 03:38 But you mentioned it's a document of its time. 03:41 What I laugh at every time I hear people 03:43 sort of extolling it like a document for the ages. 03:46 You go in there and it actually gives 03:47 the dollar amount that you can be sued. 03:49 Five dollars to start, isn't it? 03:52 I don't remember that someone claimed. 03:53 Yes, he does. 03:55 But yes, there are some very dated things about it. 04:00 But the concepts, 04:05 it's pretty clear that the founders were agreed 04:08 on certain primary ideas. 04:11 On self determination, 04:13 you know, the rights of individuals. 04:16 The fact that the... 04:18 The people were the source of government power. 04:22 You know, basically separation of church 04:25 and state was widely accepted, 04:27 although not universally at the time. 04:29 In fact, 04:31 I think that 04:33 the idea of establishment was a dated idea at that time. 04:38 People were moving away 04:41 from the idea of staff rebellion. 04:42 But why? 04:43 I tell you why I think the reason was. 04:46 There was the rebellion against England 04:49 and England had an established Church of England. 04:52 And so of necessity severing from England, 04:55 cast into disrepute that entire church 05:00 because to this day, 05:02 it's not called the Church of England 05:03 in the US, it's Episcopal Church. 05:04 Right. 05:06 Well... 05:07 So it's just almost unacceptable 05:08 to acknowledge that it's an English church. 05:10 Well, that certainly was part of it. 05:12 But it was a lot closer to home because people had seen, 05:16 particularly the Virginia Declaration of Rights 05:19 was the first really statement of separation 05:21 of church and state. 05:23 Yeah. 05:25 And they made their judgment 05:29 based on what was happening. 05:31 Baptist ministers were getting chased out of town, 05:33 they were getting imprisoned. 05:35 There was a horrible things going on against people 05:39 who didn't subscribe to the established church, 05:43 the Church of England in Virginia. 05:46 So that led 05:49 to the first really codified 05:54 statement of separation of church and state. 05:56 So and then... 05:58 It's an argument that catch both ways though. 06:00 What you say is evidence 06:01 that they liked establishment too. 06:04 That in different areas 06:06 the established church was there 06:08 and if you are a freelancer because going further back 06:11 the Quakers and all the rest, they would be harassed. 06:14 You were not seen 06:16 as the true embodiment of the community. 06:18 But that's what the founders were trying to get away from. 06:22 I think they were. 06:24 They had seen the abuses of this, 06:27 that system and the same thing with the Puritans 06:29 in New England. 06:31 There was a lot of persecution of people. 06:33 In fact, people were actually executed 06:36 for not being part of the Puritan church. 06:39 Well, Quakers were... 06:40 Yeah, Quakers were executed in New England. 06:42 Right. 06:43 So there were lot of abuses of establishment 06:45 and they'd seen that 06:47 and they realized that this was not 06:49 what they wanted for their free society. 06:51 But they couldn't just go and say, okay, 06:53 you know, it's over with. 06:55 Because, but what you see is over the next few years 07:00 the official state establishments 07:03 actually declined significantly. 07:05 People didn't like them anymore. 07:07 They didn't want them anymore. 07:09 The last one was Massachusetts, 07:13 disestablished officially in 1833. 07:17 That wasn't the end of establishment, 07:19 but it was the end of official establishment. 07:22 And, you know, in all of these discussions, 07:24 there's so much going on. 07:26 And I think a lot of what happened in the US 07:28 and then later in Europe was almost foreordained 07:33 as this was a restructuring of people 07:35 moving from the country, 07:37 into the cities, more fluid jobs, 07:41 the dynamic of industrialization 07:43 weaken the power structurally of the church, 07:46 and emotionally people didn't have the ties 07:49 and they could not be ordered by the state the same way. 07:52 And so in the US that happened the knife throws 07:55 or a knife cut, 07:56 where at the one time you're cutting loose 07:58 from the Church of England, 07:59 and from the government of England. 08:01 And so this developing idea 08:04 of individual self-determination 08:07 was writ large into the Constitution 08:09 which is very good document. 08:11 Well... 08:12 They had respect for religion, 08:14 but it's a very hard sell on the founders, 08:17 with few exceptions 08:19 to make them out as religious icons. 08:21 They were nominally religious deist, 08:24 which was the acceptable form of basically not an atheist 08:30 but a secularist of that time, 08:32 they were not highly religious people at all. 08:35 Most of them weren't. 08:36 No. Adams was pretty religious. 08:38 Yes, and of course, 08:41 Patrick Henry, that we quoted all the time, 08:43 who was actually on the losing side 08:45 of most of this argument. 08:46 I mean, he was the ultra conservative 08:48 religious guy. 08:49 But in terms of the issues 08:52 that caused them to go toward separation, 08:57 I think there are two separate streams 08:59 of philosophy in American history. 09:02 There's the Enlightenment, 09:04 which was heavily in Jefferson and Madison, 09:07 and many of the founders were heavily influenced 09:10 by the Enlightenment, 09:11 which was more or less a secular movement. 09:13 But then there was also the separation on philosophy, 09:18 for example, Roger Williams 09:20 that went in the religious area. 09:22 So these two twins... 09:24 And as I told you privately 09:25 Roger Williams is the Puritan connection. 09:27 And the Puritans, remember were always non mainstream 09:32 as far as establishment views with the government. 09:36 And this was pretty much work out your own salvation 09:38 with fear and trembling through godly living 09:41 and an upright life. 09:42 So that meshed in my view beautifully 09:45 in this new world 09:46 when they separated from England. 09:48 It was already made toward 09:50 and that meshed with the Enlightenment principles, 09:54 and we have the Constitution and the Bill of Rights. 09:57 And it was the spirit of its times, 09:59 but I think the history of the US made a gel 10:02 in a way that it couldn't anywhere else. 10:04 And just as a side note, 10:05 Roger Williams was the one 10:07 who created the term wall of separation. 10:10 Yeah. 10:12 So he was the original the wall between the, 10:16 the garden of the church and I forget the rest of it, 10:19 but he basically that 10:21 if his viewpoint was if church and state are joined, 10:25 it corrupts the church. 10:27 Yeah. 10:28 And that was his primary concern. 10:29 Yeah. 10:31 No, and that's a good point 10:32 that we need our viewers to say. 10:33 We're often mentioning Jefferson's language 10:35 in the Virginia statute. 10:36 Which I think is relevant legally 10:38 when you're trying to compare to the Constitution, 10:39 but as far as an origin of it, 10:41 it predates a long way 10:43 and it goes back to Roger Williams, isn't it? 10:46 So, you know, what your takeaway on originalism? 10:50 You think it has a future 10:52 or are we destined to go forward 10:55 live in Constitution. 10:57 I would like to say its time has come and gone, 10:59 but unfortunately in the current environment, 11:01 it appears that it is more relevant than ever. 11:04 And that is a concern on many levels. 11:08 But I think the takeaway is that 11:11 I don't believe 11:13 that the founders of the Constitution 11:15 intended for us to read every single word 11:19 and decipher it. 11:21 I think that there were certain overall overarching principles 11:26 that they wanted us to keep in mind, 11:28 the freedom of the individual, 11:30 freedom to worship all of the rights 11:33 in the Bill of Rights. 11:34 Those were intended to apply to everyone 11:40 throughout American history. 11:42 And the founders didn't believe that they had the end road 11:47 in what a good government is. 11:51 They believed that it was important 11:55 for people to work out their own government overtime. 12:01 I think it was T.S. Eliot in The Waste Land 12:04 that made a comment about in a moment 12:06 you can make a decision and reverse your decisions 12:09 and flip flop mentally 12:11 to reach some grand and overwhelming question. 12:15 There's no question in my mind that the Supreme Court, 12:19 at least an aspect of thinking about it, 12:21 in reaching toward original intent 12:24 is playing with the same indecisiveness. 12:26 Who could know 12:28 what was in your own mind yesterday, 12:30 let alone what was in the mind 12:33 of the framers of the Constitution. 12:36 There is some safety in knowing history. 12:39 There is some safety in knowing the Constitution. 12:42 There is some safety, 12:44 a lot of safety in having a sense of internal morality, 12:48 and fairness, and justice. 12:50 And while this is not a Christian nation, 12:53 there is absolutely an imperative 12:56 to be familiar with the great judge, 12:58 the great court 13:00 and the responsibility we all have 13:01 before the Creator of the universe. 13:04 For Liberty insider, this is Lincoln Steed. |
Revised 2019-05-10