Re: Originalism and Freedom

Hume comments:

"Although I am not a "Republican" (or a "conservative" or "right wing" etc.), I think that this statement is misguided. Much of the rhetoric of Republican politicians (I assume you are not discussing theorists) surrounding originalism as a constitutional theory (and the Republican platform in general) urges 'States' rights' and restrictions on the federal government.This is antithetical to the idea of nationalism."

Though Hume presents a contradiction, the contradiction is not mine. Republicans, rather, extoll the virtues of "freedom" (which, to them, means lower taxes, "smaller" national government and, in some cases, more power in the hands of states), promote a massive military and global corporations, and rail against the tyranny of Democrats, all the while believing that the Constitution is binding and that it only means what it meant to a group of landed white men 250 years ago. That Republicans both emphasize "state's rights" and believe that the Constitution binds everyone in the United States to the meaning of words as such were understood 250 years ago does not undermine the thesis of my prior comment. Rather, it illucidates this deeply embedded Republican contradiction.

"Moreover, any political theory justifying 'the state' (short of cosmopolitanism and world government) perpetuates an 'us vs. them' mentality. It separates people by geographical boundaries and asserts special obligations to 'fellow citizens' that do not apply to 'outsiders.' So I think that your hostility towards the Republican platform is too narrow and under-inclusive."

Justifying the presence of a state does not require one to assume an adversarial relationship with those who do not submit to the jurisdiction of that state, as the "v." would imply. But Hume makes a fair point. Nonetheless, it doesn't really address the issue I raised. If I were making the comment that Republicans don't believe in real freedom and Democrats do, than he would be accurate in saying that my "hostility" is "too narrow and under-inclusive." But, alas, that is not my point. My point has to do with the nature of the word "freedom" and its analogs in the rhetoric of Republican politicians. I can contrast the perspective of Democrats, who argue that government can be "good" and help create more equitable circumstances, with that of Republicans, who claim the mantle "freedom" and aspouse the efficiency of "free markets" and conjur fear of "big government". This makes my point more compelling because I am pointing out a contradiction. When Republicans use the word "freedom" they don't mean "for everyone" and they don't actually mean anything close to freedom from government. Quite to the contrary, they believe that no generation subsequent to the founders has a right to alter the core principles by which they are governed without the consent of a vast majority of people throughout the nation. That is my point. Whether or not this is a conscious part of the Republican platoform, it is certainly implied.

"Also, your focus on the authority of the past is somewhat misguided as well. One thing to notice about the nature of law is that all laws, absent an expression to the contrary, claim authority to bind future generations. Any theory justifying the authority of law justifies the authority of one generation to bind future generations. Notice that a law enacted by Congress in 1934 is valid today, absent an express change or amendment."

Hume's point, that all laws claim authority to bind future generations subject only to change or amendment, is fair enough, though this somewhat misses the point as well. Statutes promulgated by legislatures can be repealed or amended rather easily. Amendment of the Constitution, by contrast, involves the almost Herculean effort of obtaining a supermajority of both houses of Congress, then ratification of 75% of the state legislatures. Hence, with the exception of the Bill of Rights, the Constitution has been amended only 17 times in 250 plus years. The flexibility of the law and its susceptibility to change is at the core of my comment, which highlights how permanent and frozen in time Republicans would prefer the the meaning of the Constitution to be.