Spirit of Error

Post 151

Copied from Anchorage Daily News (ADN.com) January 14, 2011- http://www.adn.com/2011/01/14/1649487/intent-of-us-constitution-mulled.html


“Intent of US Constitution mulled since the beginning
John Havelock
comment
Published: January 14th, 2011 09:44 PM
Last Modified: January 14th, 2011 09:45 PM

The United States is experiencing a crisis in health care. For two generations, the country has provided financial support for health care for some of the poor, most of the aged, members of Congress, veterans and others, all with good results, but there are millions left out facing illness and death. The Congress and president have just determined that all should be covered. The law provides that if a citizen feels it's not for him, he can opt out but he should pay a tax to support the system anyway. We can't let anyone die because they opted out.
Health care for all and other questions of social policy are hot these days because an often vociferous faction, calling itself "Originalists," charges that the principle of obedience to the original intent of the Constitution's draftsmen, including its limits on federal powers, has been betrayed.
It might surprise the reader to know that judges have been considering original intent for all of the nearly 224 years since its adoption. It's just not so easy to interpret intent with a document that old. Some of the provisions are straightforward, others ambiguous. For example, what does it mean that the Congress shall have the power "to provide for the general welfare of the United States"?
To take another example, where is it written in the Constitution that the Supreme Court has the power to throw out the acts of the people's representatives? Nowhere. If it had been originally intended, don't you think someone would have made it specific? Putting it bluntly, the first chief justice of the Supreme Court decided it would be a good idea. Justice Marshall enshrined the notion in Marbury v Madison in 1803. Maybe he was right, maybe wrong, but a precedent was established that has been respected by the courts ever since, even though it is unlikely that any great harm would come to us if Acts of Congress, signed by the president, could not be dumped by just one member of the Supreme Court, elected by nobody, breaking a four-four tie.
Sixteen years later, in McCullough v Maryland, Justice Marshall reminded us, "We must never forget that it is a constitution we are expounding."
What did he mean by that? He explained later in the opinion describing one section: "This provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

As Marshall knew, none of the Constitution's provisions could have anticipated the drastic changes that have made America unrecognizable from the perspective of an original draftsman. What would the draftsmen have thought about the allocation of radio frequencies? Hmmm.
But still, over these intervening years, public administrators and judges have worked at deriving meaning from this document, or, rather, series of documents, as amendments have been added, considering what the draftsmen might have intended. They have applied that meaning in practices and judicial decisions, supplementing their main work in interpreting and applying federal law. These decisions make up an impressive body of law that lawyers call "precedent." Precedent is normally binding in determining what the Constitution means.
The "Originalists" of 2011 want to throw out much of what generations of judges have had to say, in favor of a new interpretation of what the draftsmen thought. Originalists color themselves as conservatives, but this approach, throwing out the concept of "precedent" that has guided the thinking of all well-trained lawyers for years, reveals the Originalists as striving to make radical changes in the meaning of the Constitution so they may bring radical change to the country.
Originalists have a new social agenda for the United States disguised as the application of conservative principles.
We can have no objection to the advocacy of this social agenda. Such views can and should be vigorously expounded and debated. Maybe universal health coverage is bad for the country. But it is mischievous to pretend that the nation cannot even consider the program because fealty to originalism means the program is unconstitutional.
John Havelock is a practicing lawyer and former Alaska attorney general. “

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Ignorance is something we can all wink at in the innocent, but Mr. Havelock is not innocent. Mr. Havelock is a practicing lawyer and former Attorney General of Alaska.
Therefore he has an obligation to know the truth and the application of law, and we have every right to hold him accountable for error. So much more so, when that error is done with intent and for a subversive purpose of which this article gives every indication of being; *1

He begins his article making a bold declaration; “The United States is experiencing a crisis in health care.” This statement, based on opinion and propaganda, is the apparent foundation for his article. We will at this time ignore the debate whether this statement is true or false.

He goes on to boldly state that the country’s financial healthcare support of some of her peoples has been; “all with good result” We can only imagine that he does not mean to include those majority of veterans who although promised, cannot get the care they need, or those Americans who cannot receive organs because federal prisoners have priority, or the unbalanced and expensive care provided for congress but not even implied to the masses, or the inexcusable high cost of care because of government regulations harming those not in their programs, or the incredible wasted funds which many congressman openly recognizes as “just to be expected”, or the bold fact that this country is virtually bankrupt because of spending funds on programs the government was never designed to fund, such as the kind of Health Care he is suggesting.
So just what does “all with good results” actually mean in such a bold statement?

Further, those of us who have read the Healthcare bill, at least in part, know the “opt out” option is a poorly veiled deception, which he actually exposes by stating they should pay anyway, then supports his statement of declaration by the emotional logic; “we can’t let anyone die because they opt out.”

Says who?

Why does this former Attorney General assume this idea is already beyond question? Are we already a Nanny State? What if I actually prefer dying because I chose to opt out? Don’t I still have that freedom? Or do I actually belong to the State now? What gives this man the right to decide “we” can’t allow such a thing? What else can’t they allow? Homeless? Jobless? Carless? Spouseless? SUVless?
When did your hearts turn from being Americans?

“Is life so dear, or peace so sweet, as to be purchased at the price of chains or slavery? Forbid it, Almighty God! I know not what course others may take but as for me; give me liberty or give me death!” - Patrick Henry

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But my response here is not to argue his views on Healthcare.

He has made his statement of cause (Healthcare) to support the rest of his article. He knows he now has the favorable ear of those who like the idea of universal healthcare.
With this favor he now enters the real intent of his article; the disparagement of the “so called” “originalists”. Those vociferous factions!

If it was not so serious, his open vilification of these people would be comical. Are they no longer Americans? Don’t they still have a right to an opinion? Or is that time already passed in America as in all previous communist countries that came before us?

Then this former Attorney General gives the “vociferous faction” calling itself “originalists” a lesson in original intent;

“…where is it written in the Constitution that the Supreme Court has the power to throw out the acts of the people's representatives?”

Good question Mr. Havelock... But wrong implication.
He goes on:

“Putting it bluntly, the first chief justice of the Supreme Court decided it would be a good idea. Justice Marshall enshrined the notion in Marbury v Madison in 1803.”

Isn’t that interesting? I always thought Chief Justice John Jay was the original chief Justice of the Supreme Court 1789-1795, not Justice Marshall 1801-1835 but hey, what do I know?
And to continue his error Mr. Havelock poorly twisted the written historical fact for the purpose of making his case for healthcare.
Justice Marshall did not actually enshrine the notion of throwing out the acts of the people’s representatives. What he confirmed was throwing out such acts as were in violation of original intent of the Constitution. *2 And THAT Mr. Havelock IS in the constitution by Article 1 Section 1,

And by the clear limitations of said government established by Article 1 Section 8,

And by the oath of office to “preserve, protect and defend the Constitution”,

And by the limitations of the Judicial Power of the Supreme Court found in Article 3 Section 2,

And by the process of ratification of amendments as found in Article 5.

And by the spirit of original intent of the writers and signers of the the declaration which you can't seem to find because the document is so old;

“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests.”
- Patrick Henry

But do you mean other than those?

* * *

So the very case Mr. Havelock is making against the “originalists” actually supports the originalists argument in conflict with the point he is trying to make it make regarding precedent! *4 Or am I being vociferous by pointing this out?

In fact the very Justice Marshall in the very case Mr. Havelock used to make his case is in fact very, very clear that he stands on the principle of an originalist; What specifically did the Constitution intend? *3

Mr. Havelock, if you like the idea of universal healthcare, then by all means promote it, that is your right as a free American. But do not lie, deceive, and subvert the truth to do it, That is not your right to do because it does great damage to America.

Mr. Havelock is attempting to subvert the case, the character, and the original intent of Justice Marshall. But hey, attorneys are recognized across America for a willingness to distort the truth to win their case.

Do you really think the practicing attorney and former attorney general of Alaska does not know this error? IF he doesn’t, he is a lousy attorney who doesn’t bother to research his facts. This is willful and shameful conduct for anyone, and even moreso for someone pretending to practice law in America!

The ramifications are huge and far more unaffordable than Health Care!

His article should have been titled:
Intent of US Constitution MAULED since the beginning.

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*1 Webster’s Collegiate Dictionary 5th edition 1948
Subvert: 1. To overturn; overthrow; ruin utterly 2. To undermine the morals allegiance, or faith of; corrupt.

*2 “Marbury v. Madison, case decided in 1803 by the U.S. Supreme Court. William Marbury had been commissioned justice of the peace in the District of Columbia by President John Adams in the “midnight appointments” at the very end of his administration. When the new administration did not deliver the commission, Marbury sued James Madison, Jefferson's Secretary of State. (At that time the Secretary of State was charged with certain domestic duties as well as with conducting foreign affairs.) Chief Justice John Marshall held that, although Marbury was entitled to the commission, the statute that was the basis of the particular remedy sought was unconstitutional because it gave the Supreme Court authority that was implicitly denied it by Article 3 of the U.S. Constitution. The decision was the first by the Supreme Court to declare unconstitutional and void an act passed by Congress that the Court considered in violation of the Constitution. The decision established the doctrine of judicial review, which recognizes the authority of courts to declare statutes unconstitutional.” - See R. L. Clinton, Marbury v. Madison and Judicial Review (1989). - http://www.infoplease.com/ce6/history/A0831715.html

*3 Full Text of the case: http://supreme.justia.com/us/5/137/case.html

*4 From Justice Marshall’s ruling:
page 5 U.S. 163 “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.”
"it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded."

“The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

“Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered
Page 5 U. S. 170
by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the Executive.”
“It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”

Page 5 U.S. 173 “The act to establish the judicial courts of the United States authorizes the Supreme Court ‘to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.’"

Page 5 U.S. 176 “The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.”
“The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.”

“The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”

The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

page 5 U.S. 178 “If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

“Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions.”
It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”

Yet this is exactly what Mr. Havelock would have us do by blindly accepting precedent, which he claims this ruling established and supports!

Page 5 U.S. 180 “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.”

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Justice Marshall made clear his recognition that neither Congressional rules, nor even he as the Chief Justice of the Supreme Court had power or authority to go beyond what the Constitution explicitly allowed.

This case ruling is so clear in its intent that Mr. Havelock must intentionally misconstrue that intent in order to come to the opinion that Justice Marshall “thought it was a good idea” that the: “Supreme Court has the power to throw out the acts of the people's representatives”.
Mr. Havelock’s error in this one article are so many, I cannot take the space to address the others.
Mr. Havelock has shown us the color of those who would give us Healthcare at any cost.
This is not just error, but the spirit of error.

It is not the “originalists with a new social agenda," but those like Mr. Havelock that would subvert the very foundation of our great nation.

Respectfully Submitted January 16, 2011
Kyle Ponsford
Haines Alaska
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