DISLODGING THE KEYSTONE OF LIBERTY

            Last month, Federalist contributor Benjamin Dierker dismissed Justice John Paul Stevens’ (ret.) imprudent suggestion that the Second Amendment should be repealed altogether. Dierker argued that the natural right to self-defense and the Ninth Amendment render repeal of the Second Amendment irrelevant in a properly functioning America.

But is this really true?

The natural right of self-defense does not protect gun rights.

The natural right to self-defense, recognized and respected by long-standing legal tradition, does not provide a catalogue of weapons for use in personal defense that ought never to be restricted by law. It only provides a basis for the use of whatever means were circumstantially available—and allowed by law—to one person’s reasonable defense against an imminent threat of significant bodily injury or death. It does not validate an a priori right to own, carry or wield a gun. Legal officials determine after the fact if a person defended himself reasonably under the circumstances whether he used a gun, a knife or his bare hands. More importantly, one person exercising his natural right to self-defense does not provide for “the security of a free state”, but for the security of an individual. This is no minor point. Every modern Englishman has a legal (and natural) right to defend himself and his property against aggression; yet, few Americans would call England a “free state” because no Englishman has the fundamental right to own, carry, or wield a gun or even a knife—only the privilege to do so as granted, limited, or withheld by government fiat.

 

However, ensuring the “security of a free state” simultaneously secures each person’s right to defend himself because securing the good of the whole necessarily secures the good of every part within that whole. A citizen cannot secure his community without securing his own house simultaneously as a constituent part of that community, but he can secure his own house to the detriment of his community’s security.

Only the Constitution, correctly construed, provides legal protections to natural rights.

The idea of a properly functioning America would seem to imply that every citizen and representative respects, obeys and enforces every law, including the Second Amendment, and that patriots will meet any disregard for the law with legal, political, or, if necessary, physical force. The Founders composed laws subordinated to "the Laws of Nature and of Nature's God" to combat man’s natural temptation to abuse power. And they surrounded those laws with double guards in the Bill of Rights, not one provision of which is expendable. Repealing the only protective provision declared to be “necessary to the security of a free state” should be unthinkable under any circumstances, let alone in an ideal American society; yet, well-meaning advocates on both sides still discuss—and what is worse, litigate, lobby and legislate—in unfeigned ignorance of the Amendment’s meaning and relevance.

Construing the Constitution, or any part of it, requires one to interpret the words in the “natural sense” that the men who framed them and the people who adopted them would have understood them at the time the Amendment was written. “Natural sense” does not mean “colloquial”; rather, it gives precedence to any relevant legal definitions that essential terms may have had at the time. This is the heart of “strict construction”.[1] Given that rubric, the plain legal meaning of the Amendment absolutely controls this otherwise confused debate.

Unfortunately, that plain meaning has been paved over, largely with the asphalt of good intentions. 

The well-known text of the Second Amendment reads:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

            Most people—including professedly "textualist" Supreme Court justices—are content to divide the Amendment’s text somewhere near the middle and to set each half against the other. Justice Antonin Scalia in District of Columbia v. Heller divorced the use of firearms as part of one’s service in the militia from an individual's use of arms for lawful purposes not connected with militia service, essentially separating the right to use guns for lawful personal aims from the right to defend one’s polity.

Heller contradicts the “natural sense” of “[a] well regulated Militia”.

If the “natural sense” of any constitutional word requires that any relevant contemporaneous legal definition must take priority, then it is of paramount importance to discover whether a given term or phrase had been legally defined by the time the Constitution was written. The idea of “a well regulated Militia” was not an innovation of the Founders. It was a long-standing, statutorily defined, legal entity requiring persons to ensure the political welfare and physical defense of their communities. Generations of colonists, reaching back to the earliest days of Plymouth, had been subject to the ubiquitous statutes requiring each citizen—unless specifically exempted for public duties or conscientious objections—to acquire and maintain in his home a rifle or musket with shot and powder, and to appear on select days armed and accoutred with the same, or to pay a fine for any defect. Moreover, these colonists had served their militias not only in their local communities, but also with those militias in the field both with and against English soldiers.  

In other words, the historical reality of “a well regulated Militia” does in fact define the “natural sense” in which the Amendment must be construed. The constitutions of the thirteen original States confirm this interpretation. They express not only the vision of the federal Framers but also the vision of their counterparts in state legislatures who had to consider that text and its meaning carefully. Each State adopted language similar to that expressed in Virginia’s Declaration of Rights (Article XIII):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The “well regulated militia” is not contrasted with the “right of the people to keep and bear arms”; rather, the “well regulated militia” is identified as the “body of the people, trained to arms” and opposed to “standing armies” which “should be avoided as dangerous to liberty”. Any person apprised of the arguments before the Federal Convention or before the State ratifying conventions would have appreciated this crucial distinction. How could he do otherwise? He was a militiaman, and he had seen written on the bloody fields of New York, Massachusetts and Virginia the principle—known to others by a careful study of history—that a standing army was a means to a single end: usurpation of power, that is, tyranny.

            It is no mere coincidence, then, that the militia is mentioned in Article I § 8 clauses 15 and 16 of the federal Constitution.

               The Congress shall have Power...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.]

The Founders expected that the militias of the several states—not the military—would be ready to perform these tasks on a national scale whenever they might be called into federal service. State and local governments would keep their militias ready to perform those federal duties in addition to whatever duties served a State or community’s particular needs. At bottom, then, the militias are the primary defense mechanism for—the necessary means of securing—a free state. They secure public order by executing the law; put down domestic violence against the rightful authority, whether that violence issued from an unruly populace or from a usurpatious and tyrannical government; and repel invasions by foreign enemies. Gun control advocates can advance no argument against the need to arm “the body of the people” with so-called “assault weapons” or “weapons of war” or “military grade weapons” to achieve those provisions. 

            Put in this light, the full scope of any militiaman’s rights and even the nominal scope of his duties will include and exceed those available to any theoretical free layman.

            Once again, those powers over the militia are expressly separate from and in no way identical to the powers that Congress has over the military as expressed in the three preceding clauses of Art. I § 8. No one should conflate the terms “militia” and “military”. Gun control advocates profit immensely from this confusion; no Second Amendment patriot can afford it or should even tolerate it. 

The body of the original Constitution nullifies an appeal to the Ninth Amendment.

The Ninth Amendment provides only that no power granted in the Constitution shall be read in such a way that denies or disparages other rights retained by the people. In other words, it only protects those rights not expressly granted in the Constitution. Therefore, it cannot apply to any rights that may be incorporated into the constitutional meaning of the express provisions of Art. I § 8 clauses 15 and 16. The Ninth Amendment does not clarify or define the extent of those provisions. It was not intended to. It was not intended to form the substantial guard against those who may seek to erode or eliminate “the right of the people to keep and bear arms” as “a well regulated Militia”.

No. No. No.

The Second Amendment is that guard, that buttress, that clarifier, that belt to the suspenders of the provisions stated in Art. I § 8. It ensures that, if at any time the meaning of “a well regulated Militia” became obscured either by a lapse in the people’s vigilance or through the machinations of encroaching tyrants, the people would have clear legal recourse to claim for themselves the right to assemble—armed, organized and disciplined—for the defense of their God-given rights. Removing it, or even countenancing such removal except for the sake of argument, is to play into the hands of gun control advocates whose agenda will eradicate at the source the possibility of an armed, organized, and disciplined—and therefore vigilant—populace. Dislodge the keystone and the arch will collapse. If the Second Amendment falls, so does the Ninth Amendment and the whole Bill of Rights because no such protections are needed in a state that is no longer secured by, and for the good of, free men.

---

[1] See Dr. Edwin Vieira, Jr., How to Dethrone the Imperial Judiciary, 69, 74-77 (Vision Forum Ministries, 2004); see also, Gibbons v. Ogden, 22 U.S. 1, 188 (1824) and United States v. Sprague, 282 U.S. 716, 731 (1931) as quoted in his text. See also, Constitutional Homeland Security, Vols. 1 and 2 by the same author.

Pitching "Hitler's Pope"

This article was posted to my feed today. I could not let it slip by unchallenged. The body of the article and the work it reviews betray an ignorance not only of basic history but also of the history and teaching of the Church. They are but a talisman of a waning fad. Bear in mind that I shall challenge only a few of the inconsistencies, calumnies and detractions made against the Catholic Church in this article. Much more lurks within its depths.

To begin, the allegations that the Church only acted to preserve its political power in Europe betrays a gross misunderstanding of the Church's position at the time. The last vestiges of a "confessional" state―one which answered in conscience to the Church because it "confessed" the Catholic creed―were long since dead in modern Europe: the death blow to political Christendom had been struck at Westphalia in 1648, the revolutions that convulsed Europe from Paris in 1789 to Moscow in 1917 were the funeral procession, and the political machinations following World War I laid the corpse to an uneasy rest. The Church's political power then as now may be measured by the size of Her political state: 109 acres surrounded by ancient stone walls. Her moral authority, however, is not subject to measurements of a political character. Even though states may come to fear that authority, they fear more the truth known to history: that the structure of the Church may collapse into ruin―ruin sufficient to destroy any political entity yet known to man―and yet the Church herself shall not be destroyed. Said renowned anti-Catholic Thomas Macaulay: She [the Roman Catholic Church] may still exist in undiminished vigour when some traveller from New Zealand shall, in the midst of a vast solitude, take his stand on a broken arch of London Bridge to sketch the ruins of St. Paul's. 

Anyone wondering why the Vatican kept silent during this time of crisis need only look at the facts of the matter. Pope Pius XI (Eugenio Pacelli's immediate predecessor) had written to the German bishops in 1933 praising their zealous condemnation of Nazism and encouraging them to speak out even more against the evils that were inevitable should this pernicious ideology take root. Mit Brennender Sorge publicly denounced the Nazis, and Hitler was not sure of enough support to publicly condemn the Church in return. Hitler had to play the game very close to the chest in the early years of his Chancellorship. What might have occurred had the war been delayed and Hitler better solidified his public power? At the turn of the eighteenth century, Napoleon Buonaparte had captured and imprisoned the Pope, forced him to participate in a crowning ceremony, removed him from the public eye, and effectively silenced any criticism the Pope would have voiced against the revolutionary regime in France. Did this possibility―indeed likelihood―not present a legitimate concern for Pius XII? His city and public seat of authority were located in the capital of fascist Italy, Hitler's dedicated ally. As a political entity, the Vatican signed a concordat both with Italy (which recognized the mutual legitimacy of Vatican territory and Mussolini's government, though it did not approve of fascism itself) and with Germany to safeguard the needs of Catholics in both of those countries. How necessary this was in Germany especially, where Bismarck had initiated a sustained and vicious kulterkampf in order to destroy specifically Catholic influence which often barred his aims at German unification and consolidation of government power. Regardless, one cannot infer moral approval from a political treaty. That would be a tremendous leap of logic even if the historical record did not bear witness to the contrary. Hitler's Pope indeed!

Was it Hitler's Pope who became responsible for the hundreds of thousands of Jews and other refugees who were smuggled through Catholic networks and the unknown numbers permanently hidden within the Vatican, and thereby kept safe from the Nazis? It is estimated that nearly 860,000 Jews were rescued by the efforts of the Church. This was possible only as long as the Vatican remained ostensibly neutral. Pius and the clergy of Europe faced tremendous challenges. Protests against the treatment of Jews and other untermensch were not unilaterally effective as a countermeasure across Europe, and in some cases, public clerical protest only aggravated the Nazis' policy toward Jews. Should the clergy have spoken out, if doing so would actively worsen the situation? Should they not then have better worked in secret, as they did? Was it Hitler's Pope who dispensed cloistered monasteries and convents from their rules and allowed them to open their doors to refugees? Was it Hitler's Pope who encouraged cathedrals, chapels, hospitals, orphanages, and countless other institutions run by the Church to act as crucial safe-zones and stops along the various escape routes? Would Hitler's Pope have covered up the issuance of fake baptismal certificates to non-Catholics? What utter rubbish! Nor are these assertions mere Catholic propaganda. Many Jews, including the Chief Rabbi of Rome, publicly thanked Pius XII for his service to the Jewish people to show their gratitude. Personal testaments, awards, documents and historical scholarship stand in stark contrast to the singular allegations popularized by Hitler's Pope and The Deputy and Constantine's Sword. Nor should one ignore the credible assertions that The Deputy was heavily influenced by the active Communist campaign to discredit the Church in Europe as Her influence was challenging and slowly eroding the effects of Soviet conquest. Any works which appeal to The Deputy as a reliable source must be equally suspect.

Much of this defense of Pius XII, however, rests not on the evidence which is available to anyone who looks for it, but on a basic proposition that it appears ludicrous for anyone―let alone a libertarian, as the author of the article in question purports to be―to deny: that a man has the duty to defend first those chiefly under his care. Common sense demands that if fire endangers John's family and Ben's family equally, John ought to protect his own family first, and Ben ought to see to his. Why is this allowance denied to Catholic prelates whose primary concerns are and of right ought to be for their own people? Such unreasonable demands as would force the Church to care for others before her own are truly mystifying in this light.

Who shall condemn Switzerland for neither speaking out against the evils of Hitler and Nazism nor praising the efforts of the Allies? Will no one admonish Sweden? Ireland? Portugal? Andorra? Liechtenstein? No one mentions the failure of the Princes of Liechtenstein to take a public platform, or convicts the cowardice of the Portuguese Prime Minister, or accuses the Irish, Swedish and Andorran governments of complicity by their silence. Rather, they are remembered (if at all) for their actual contributions, however small, not for their public posture. Vatican City is smaller than any of these, and has for an army less than 250 mercenary (but dedicated) guards; yet, it is expected to have done what no one demands of these larger and more capable states. Even so, the Church that protected the victims of Nazi aggression more effectively than any other entity is the more scurrilously condemned for not making its disapproval sufficiently public. Even if the Vatican had not taken these documented and heroic actions, was it not privileged as the other neutrals were to protect its own interests first and to maintain its neutrality in the face of grave danger and war? Or will someone say that these other neutrals were equally selfish and worthy of contempt? At least that would establish some consistency within the narrative, though its timbre would sound equally hollow.

To paraphrase G. K. Chesterton, it swiftly becomes clear to the careful observer that any stick appears good enough to beat the Catholic Church with. The world does not more consistently place any one thing in the unenviable position "damned if you do; damned if you don't" than it does the Catholic Church. Nor does it do so with such obvious bias couched in self-righteous platitudes. Those who value true history cannot too quickly abandon nor too zealously fight to dispel this abusive lie, this false narrative, for it is no more than a canker blossom in the mouth of truth.

Science of the Gaps

Lately, it reoccurred to me that I am very frustrated with the so-called dialogue between scientists and Catholics. Their attempt to deal with an unnatural disagreement has, partly through its artificiality, come to appear like the squabbling of poorly mated couples who have nothing better to do with their time than to aggravate the one they feel is responsible for their unhappiness and to avoid making up because neither one will admit to being in the wrong. None of this does any good for their children―the general public―who know instinctively that their parents do belong together and should be happy for being so. And even though the children may not fully understand the nature of the disagreement, they know that each parent is, to a certain extent, laying it on a bit thick.

In the course of this disagreement, two things have become clear: first, that both camps lack clarity in presenting their respective cases, and second, that neither side can in fact convince the other as it is currently arguing. 

Clearly, we are in a fog. Bulverism has entered the arena. One can argue without having to engage his reason at all. He can dispel any uncomfortable notions with a category statement about the beliefs and desires of the other side vigourously applied to the peccant part of his own psyche. Rather like the man who, though lost, refuses to ask someone else for directions because, as he puts it, "They have not got my sense of direction." When this attitude is not only generally accepted but also honored, one cannot even blame himself for being lost because in his own mind no one else knows where they are going either.  

Neither science nor religion is to blame for the preeminence of this sophistry. After all, bad philosophy―unlike morality―must be practiced to be preached. That is why this problem is not between science and Catholicism, but between scientists and Catholics. Eradicating one bad philosophy will not settle the question anymore than eradicating one bad philosopher. Nor will bad philosophy end by the destruction of philosophy itself anymore than philosophy will end by the destruction of philosophers. Any man can be a philosopher because every man can think. Those few who think with purpose stand apart as leaders of the rest. The man who does not think is only half alive. He is one of those who, as Benjamin Franklin puts it, "die[s] at twenty-five and [is not] buried until [he is] seventy-five." To destroy philosophy, one must utterly destroy mankind. To practice good philosophy one must allow both for the aforementioned fact that every man can think, and the sad reality that not everyone will agree even with the soundest reasoning. That is the unfortunate failing of fallen human nature, not an unique sickness of this age of science.  

Despite these unfortunate circumstances, Catholics and scientists do have common ground; quite literally in fact, as the observation that this universe is made up of material things simply is quantifiable from a scientific point of view and observable from the fundamental perspective of the human senses. All humans are not only philosophers but scientists, albeit untrained and often sloppy ones. It should be lauded by Catholics that St. Thomas Aquinas began his great treatise Summa Theologica with the simple observation that things around us exist and are in motion. And yet, from this point, however, the divergence of scientistic thought from Catholic thought is almost immediate. Scientists claim that all that is, is observable, while Catholics argue for a broader reality that surpasses sensual observation. Moreover, scientists cling to their methods and Catholics to their beliefs. Seldom do they engage themselves with anything unlike panegyrics for their wisdom and anything like serious critical thought. More often they look on one another with nothing but suspicion and engage in some form of ridicule and derision―derision that forms an unrelated and unempirical argument against the bad history of the other side. Scientists scoff at the" Dark Ages" of slavery to unreason and blind faith, while Catholics balk at the "Enlightenment", the fountainhead of unprecedented progress toward ultimate human misery. Scientists forget (if they ever knew) the debt they owe to the great discoveries made by scientists of deep religious conviction (many of them Churchmen), and Catholics are in no small way to blame for keeping out of sharper relief both the tremendous contributions made by their rich tradition to all forms of learning and the many orthodox improvements to theology that have come from the minds of scientists. But that to one side, it hardly gets to the meat of the case between the two.

Far be it from me to create a program through which every strained nerve in this fight will be healed; however, one thing should be noted as having particular benefit.

It is desirable to neither affirm nor deny too strenuously points made by either side. Each person ought to explain his reasoning, then perhaps many apparent points of conflict will disappear. And one must ask the right preliminary questions in order to reach a point of agreement or disagreement. Beginning as we are with a point of disjuncture, is it any surprise that we have nowhere to go together? Such a point is to an undefined argument as the earth is to the stars around her: a mathematical point, having a position but no appreciable value. Having an infinity of destinations can be just as paralyzing as having none.

So, we must take account of the different theses and question their validity. We must, in the proper sense of the term, be skeptics, that rare breed who take their cue from what is sufficiently proven, not merely what is proposed.

What then is the basic assumption of scientists today? That material existence is the only existence. Any gaps in man's knowledge of the universe are holes merely waiting to be filled. In the context of any debate with religion, these holes have nuisance value quickly expressed by the argument that because science does not yet know everything, "god" must exist. This notion of god is fading away and will dissolve, scientists say, when the book of knowledge is complete. In time, science will explain the universe and all that resides in it or beyond it.

But can science alone ever achieve that aim? Certainly not. It would require scientists to accept certain principles that are beyond scientific proof. It is fundamentally misleading for a scientist to claim that "god cannot exist because he is not scientifically measurable" and to conclude as a proven fact from that scientifically unverifiable claim that "the notion of god will disappear with the advent of new scientific discoveries." Scientists the world over stress that science deals only with the material universe by examining material facts and events and experimenting with limited links of cause and effect. That is what makes it reliable: every aspect of its inquiry can be researched, verified and either duplicated or amended. Scientists have further observed that the material in the universe is not endless. That there is a limited amount of matter means that the chain of cause and effect must be cyclically repetitive if it does not reach a point of first motion. That limits the scope of scientific inquiry significantly.

For it is a curious reality that to fill a hole in one place, one needs material taken from another place. Cut down a hill to fill a hole, or grind stone to get gravel, or divert a stream to flood a lake, one may do a great many different things to achieve these and other similar ends, but one things is certain: no material from beyond this universe is a plausible help. Recycling is the only strategy in a world without infinite fecundity. Until recently, the late Stephen Hawking had admitted this basic proposition; however, Hawking revealed the new axiom: something can come from nothing, as long as "nothing" means "the law of gravitation". This new axiom only reinvigorates the import of the old one that something cannot come from nothing; therefore, it is up to the scientist to explain this universe without referring to anything beyond it, to fill the gaps with data, not theories; with physics, not metaphysics; to note with scientific rigour the incompleteness of their own observations and the limits of their sphere.

Anyone seeking a complete look at the material world must step outside it, and in doing so, he must acknowledge the existence of immaterial things like reason, which alone can capture the essence of material things because of its higher nature. The very act of reasoning defies scientific explanation because it deals with the immaterial abstraction of material things. If scientists are ever to prove anything in this material world, they must rely on the material that is available to them. That material as we have seen is limited, and scientists know it well. The well-documented limit of material existence limits the extent of material investigation. The changes and challenges to prevailing theories, the incompleteness of every experiment, even those that are successful, and the consistent unveiling of new technologies that only reveal a deeper and unlooked-for complexity to the universe indicate a level of uncertainty that scientists must accept.

We are left with a "science of the gaps" which cannot prevent the flood of infinity from surrounding and penetrating the universe, one which cannot create but can only re-purpose, one which is doomed to mad frustration without the help of other branches dedicated to the search for knowledge.

In truth, the more the scientific community puzzles together the fabric of the universe, the more evident the reality of a Designer essentially distinct from the universe becomes. Every piece properly placed reveals a little more of the grandiose picture that in no way could have accounted for its own existence. Either the puzzle is a real object created by an artist or it is a product of one's epistemological imagination and void of all real meaning.

Let us turn then to the arguments posed by the theological fellows.

It is a common error, at least it is an error that I myself commonly make, to believe that faith is a provable phenomenon. Let me be clear. I do not mean that there are no proofs for the reasonability of faith, nor that faith is never proved true by our own experience or the experiences of others. But these two things, the reasons for having faith and the fulfillment of one's faith in concrete ways, are separate from the issue. There is a real difference between what drives us to profess our faith and what our faith can prove. Further, there are different levels of proof, with the level corresponding to science having some of the narrowest standards, and here I do use proof in that narrow scientific sense. To bear the name, a proof must be repeatable and verifiable. From this springs one important conclusion: the existence of God cannot be proven through science in the way that modern scientists demand and modern Catholics want. As an aside, conversely, this means that science cannot disprove the existence of God, or even the existence of Jesus. Those questions are entirely out of the realm of scientific inquiry. And if scientists quibble about the existence of Jesus and the veracity of what He claimed, one might do well to ask them by what standard they admit to the existence of Newton and the veracity of what he claimed.

Of course, this is a bitter pill to swallow. Those who believe in the superiority of Revelation to rational inquiry find little comfort in the fact that their faith has limited use here below. And those who profess the efficacy of reason naturally defy any power which imposes a limit upon their knowledge. And what limit could surpass that of an impenetrable mystery? What greater magnet for the mind, indeed, but what a blow to our pride in great accomplishments! How truly it is said that the Gospel will be a stumbling block to the wise: a truth so real and so vast as to be incomprehensible dropped right into the path of those seeking only comprehensible answers.

Yet here is a powerful tool for spreading the Gospel: knowing the frustration that accompanies the failure to understand any number of mundane realities, should we not become even more sympathetic to those who, like us, cannot fathom the supernatural mysteries before them, but unlike us have not been given reason to accept them anyway?

Would not the most efficacious argument admit that we are all of us seeking answers, and incapable of finding them on our own?

What is Natural about the "State of Nature"?

The more I have encountered libertarianism and all that that broadminded ideology embraces the more often I have needed to review and examine what underpins my own political philosophy. I find much solace in my growing certainty that nothing I hold to be true is founded on libertarianism but upholds it instead. It just goes to show that even if a man builds a stick hut on solid rock, it will last much longer than a mansion built on sand. In my position, however, I happen to have a mansion built upon a solid rock foundation.

In time, I hope to publish more thorough examinations of the libertarian sophistical system, but for the present, I wanted to put down a few thoughts on one fountainhead of modern liberalism (from which source individualism and libertarianism likewise grow), the "state of nature".

The "state of nature" supposedly is one in which man is removed from―existing prior to and without aid of―political society, i.e., government, law and pre-established social connections. While in some cases that isolation is complete, not every theory requires the abolition of all natural connections and bonds. As expounded here, for example, marriage and family contracts are not held to be under the penumbra of the political "social contract" in some cases. The theory is a thought experiment trying to discern what rights a man possesses before he opens political negotiations with his fellow man. Its aim is to discover the natural rights of man by giving him a political blank slate. In more extreme cases―Hobbes comes immediately to mind―it isolates him completely when man is demonstrably incapable of living an isolated life. It always amused me that mothers seemed to be no part of Hobbes' natural state: after all, what would every mother think of her child if he proved incapable of peaceful negotiation except wherein he needed to preserve his own life. It seems perfectly normal to assume that these men are, like Adam, created without mothers, but not created, unlike Adam, with an inherent need for friendship and community―even community with God. Perhaps Locke's state of nature more closely resembles reality than does that of Hobbes; however, a less-than-personal approach to God also distorts the natural need in man for communion.

It is no accident that Locke and other social contract theorists stumbled upon the fundamental rights of life, liberty and property which happen to coincide with three undeniable instincts an individual has to live, to choose the good and to possess things. It would have been more remarkable had Locke insisted that these three impulses did not constitute three such natural rights, as they had been recognized not only by the ancient rationalists, but also had been divinely sanctioned in the Old Testament ("Thou shalt not murder", "Thou shalt not steal", "Love thy neighbor as thyself"), reaffirmed by Christ during His ministry and maintained and defended by His Church for seventeen centuries. It could be argued instead that Locke chose those three natural rights because he could not escape the rational tradition of the West.

The search for natural rights is limited by those who chose to examine what man has in a state of nature rather than what man is by his own nature, to discover what a man does in pristine conditions rather than what a man is which manifests itself regardless of his circumstances. One can more accurately observe what a man is by how he acts in every circumstance than by how he acts in one protean situation. That man is endowed with certain natural rights should be evident through nature, not constructed by nature.

Railing on Trump's "Wall": Part IV

To my knowledge, this issue has not yet arisen, but as I have mentioned above, it may yet make an untimely appearance. The validity of Trump's powers in this regard (previously explained) notwithstanding, such advocates may argue that international law safeguards a "right to immigrate" and a "right to asylum" which Trump now has abrogated.

The Supreme Court has increasingly appealed to international law as a measure to judge the legality and even the morality of legislation challenged under the authority of Constitutional law. This disingenuous and necessarily disastrous juris-imprudence clearly reveals a bias in favour of international law, as if the will of Europe's governments were of more consequence to American law than either the will of the American people or even the "Laws of Nature and of Nature's God" upon which this Constitution is rightly founded. Dr. Edwin Vieira, Jr., guts the internationalist practices and biases which the Supreme Court has gradually adopted in his excellent book How to Dethrone the Imperial Judiciary.

A more reasonable critic could rightly claim that international treaties may influence the legality of the President's executive order. Article VI of the Constitution states that "all Treaties made...under the Authority of the United States, shall be [part of] the supreme Law of the Land[,]" and the United States has subscribed to both the Geneva Convention and the Universal Declaration of Human Rights.  One question must be entertained here: does the Treaty or any part of it violate the Constitution or require any sworn official to disregard his essential duties to "preserve, protect and defend" this Constitution? If the answer were affirmative, then the offending part of the treaty―possibly even the treaty in total―would be null and void without needing further declaration.

If the treaty is entirely legitimate, then one might further ask what the parameters of these international protections might be? How specific are they? How are they worded?

Marine le Pen, a front runner in France's current Presidential race and Member of the European Parliament, deftly answers this query. I need not add anything to her statements here: https://www.youtube.com/watch?v=8Sfhc_e5P88 (beginning at 8:30). The strict terms apply to all emigres and to every subscribing nation.

If it comes down to it, Trump's best response would be to imitate the mighty Andrew Jackson and ignore the ruling of the Court. The law, if it stands acquitted by a common-sense reading of the Constitution, must continue to stand, especially if the Justices rule that it should fall because they prefer to stand by vapid international standards which justify their position, rather than uphold the Constitution.

"The world must construe according to its wits; this Court must construe according to the law."
              ~Thomas More: A Man for All Seasons

Railing on Trump's "Wall": Part III

"The best laid schemes o' mice and men
   Gang aft a-gley. ~ Robert Burns

It appears that the Ninth Circuit Court of Appeals has upheld the Temporary Restraining Order issued by the District Court in Washington State to halt enforcement of President Trump's executive order until it has been reviewed and deemed lawful.

Following the arguments of the plaintiffs, the Court dismembers the executive order remotely, preferring again to relate immaterial motifs that depend more on conjecture than on what the Executive Order stipulates: it prefers the interests of non-immigrant and immigrant visa holders to those of citizens, it prefers the interest of private institutions to the public welfare, and it prefers the arguable interests of the States to the explicit rights and duties of the Federal Government.  It also prefers to reserve judgment on the Constitutional issue relating to the Establishment Clause, not because the accusation is groundless both in fact and in law, but "in light of the sensitive interests involved", whatever that means.

All this while it continues to ignore the material claims of the relevant statutory law.

Such an oversight is striking particularly in Section VI of the appeal decision which reviews the Government's likelihood of success in countering the State's due process claims. Not once is 8 U.S.C. 1182 (f) mentioned in connection with the duty to provide due process, nor is it regarded as an integral part of due process. And since the President has the authority and the duty to "take care that the laws be faithfully executed", a statute which provides immediate and effective power to the President to halt all immigration or any part of it that he deems in the national interest at any time and for any period of time would seem to be sanctioned by his constitutional authority. (One may even argue that the Executive authority in 1182 (f) is especially intended for national emergencies, when due process may be altered according to the demands of the general welfare.) Nor does it regard the statutory right of the President to stop immigrants from entering the United States in any way relevant; it focuses instead on aliens who are already on this soil. It challenges the Executive's authority to enforce this Order upon aliens immediately and without notice or chance of reply as a violation of due process. It should be noted that the Order does not in any way require the deportation of undesired aliens, immediately or otherwise. It merely suspends their entry for ninety days, which provides them ample time to appeal their cases, and does not recommend any further action until the period of review and report has been completed.

And of course, pace this great authority, "due process" does not mean that undocumented aliens cannot be deported. It means merely that the government authority must have proof of an alien's undocumented status in order to enforce upon them compliance with national immigration laws. Illegal aliens are de facto and de jure criminals. Proof of illegal entry demands deportation. End of story.

As it is, I am still primarily concerned that this case will make its way to the Supreme Court, and that that august body will decide against the statutory power of 8 U.S.C. 1182 (f) without once considering it on its own constitutional merits. And that will be the end of border control, of defense against multi-cultural invasion and, in the end, the last nail in the coffin of the sovereignty of the United States.

Railing on Trump's "Wall": Part II

Word is spreading.

Fifteen states and the District of Columbia under the signed names of their attorneys general (allegedly supported by this familiar face) have filed an amicus brief alongside Washington and Minnesota's federal lawsuit contesting Donald Trump's Executive Order. The original lawsuit has been upheld in one Washington court and denied in one Massachusetts court. (This opinion piece compares the conduct of the two cases well).

In summary, the Washington court judge enjoined a temporary restraining order against Trump's Executive Order without any argument based on the relevant statutes. Massachusetts' court did consider the ramifications of statutory law and executive-legislative prerogative in this matter and decided against a temporary restraint.

So naturally, the former judge's brief relies on some rather stunning legal gymnastics.

The first three observations do not offer any valid objections to the order or support the legal cause against it. If they serve any purpose, it is as red herrings and sob stories aimed at reducing what should be a legal issue to an emotional appeal.

The latter two objections raise the central problems projected by these states, claiming that the order violates the Establishment Clause and inflicts "irreparable harm" on the amici states and further arrogates their legal prerogatives.

However, the amici in the case are not so circumspect as to provide evidence of the violation. They claim a priori that a violation has occurred and argue instead that the alleged violation inflicts irreparable harm on them. Nonetheless, the argument could only take a few directions and maintain any validity. 

The Establishment Clause uses very precise language regarding the relationship between the federal government and religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" What does it mean to "establish[]" a religion? At the time, Colonists knew of only one established religion, the Anglican Church, which received tax revenue from Parliament and was under the control of the political head of the nation, the king. The Continental Congress realized that such a union of religion and state policy would have disastrous consequences not unlike the persecutions and wars that ravaged England barely a century earlier; so, they cut all ties between the state and an officially funded, politically managed religion.

More recently, however, "establishment" has been colloquially reinterpreted as "endorsement" or "preference", and bans on praying in public schools and bible reading for example have swiftly followed with "protected" satanic clubs hard on their heels. A much vaguer term, "endorsement" allows for a broader swath of contrary actions such as simultaneously demand protection of Muslims and disenfranchisement of Christians.

Accepting that the advocates of this lawsuit have no claim that Trump has "established" a religion in the strict (and therefore only proper) sense, one must assume that they instead claim he has in some way "endorsed" one religion over another. Several relevant paragraphs of the order are referenced as proof of the order's anti-Muslim bent:

   1) Sec. 1, par. 3 refers to "hostile attitudes" and "violent ideologies" that should not be allowed to enter into the United States. It further references "honor killings" and other rights violations that should not be countenanced;

   2) Sec. 5(b) directs the Secretary of State to "prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality". Of course, in the seven targeted countries, Islam is the majority religion;

   3) Sec. 5(c) specifically denies entry to Syrian refugees "until such time as...sufficient changes have been made...to ensure that admission...is consistent with the national interest[]"; and

   4) Sec 5(d) restricts the entry numbers of refugees in general to 50,000 until such entries are deemed in accord with the "national interest."

Now unless the litigants want to argue that Islam is the only religion with "hostile attitudes" and "violent ideologies", that it is the only religion that could ever endorse "honor killings" and other rights violations, that Christians and other non-Islamic religions are not being actively targeted in Islamic countries and that Syria is not an active war zone endangered by the Islamic fundamentalists known as ISIS, they have no grounds to suppose that the order singles out Muslims for scrutiny because of their religious beliefs. 

If, on the other hand, as presented in another amicus brief filed by law professors across the nation, the executive order violates 8 U.S.C. 1152 (a)1(A) which forbids preference or discrimination based on "race, sex, nationality, place of birth or place of residence", then it remains to be seen what is illegal about preference or discrimination based solely upon religion or political persecution. This becomes even more problematic if, as this brief claims, 8 U.S.C. 1152 (a)1(A) supersedes the presidential prerogative provided in 8 U.S.C. 1182 (f) [see pg. 10-11 (35-36/62)] as Trump would have been restricted by law to consider religion or political affiliation as the only legal bases upon which to enforce his immigration ban. A Muslim ban it should have been then! 

Why assume that 8 U.S.C. 1152 (a)1(A) supersedes 8 U.S.C. 1182 (f)? Why assume that because a statute was passed after another related statute that the latter repeals the former or even amends it? Statutory laws are repealed, revised or amended specifically by other statutes, or they are proven to be at variance with the Constitution through judicial review. 8 U.S.C. 1152 (a)1(A) makes no mention of 8 U.S.C. 1182 (f) and as such leaves the preceding powers intact. The broad language of 8 U.S.C. 1182 (f) is not used by accident; it implies high levels of power and discretion in the President's hands and his alone. To limit the preference or discrimination in one place while leaving intact the power to discriminate against "all alien or any class of alien" flies in the face of reason.

Even the brief filed by the "Constitutional scholars" cannot avoid the fact that "every President over the last 30 years has issued at least one Executive Order pursuant to 8 U.S.C. 1182 (f) and that many of those order excluded aliens on the basis of nationality"; however, these scholars attempt to justify their objection by observing that those orders were "not categorical exclusions of broad classes deemed to pose a risk" but restricted "individuals that had engaged in culpable conduct". [See pg. 6 (12/25)]

False. False. False.

Honestly, the Left should be ashamed of their own proponents and their own arguments. They play the Constitution as if it were a chip in their game, when they could make far more headway by openly disowning the Constitution instead. Perhaps they have not noticed that those who take hard stances on the core issues have more clout than those that take coy stances on the hard issues.

What is next? Will a court expound the illegality of Trump's order based on a survey of international law and practices and opinions of the international community? Before they attempt it, I shall provide arguments against such juris-impudence in the next installment.