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Front Page

IN THIS ISSUE-

· The Constitution and Popular Sovereignty

· The Supreme Court and Popular Sovereignty

· What is happening to America?

· The Marriage Institution

THE CONSTITUTION

and Popular Sovereignty

A note to “We the People”, The Constitution requires our participation

By Ivan W. Parkins

 

             So, President Obama has taught Constitutional Law in the university (University of Chicago) that awarded my political science doctorate.  I'm sure glad that my degree was completed about half a century earlier.
             Franklin Roosevelt's New Deal as a precedent for President Obama's disregard of our Constitution is a poor choice.  Much of the New Deal was invalidated by the Supreme Court.  Only Roosevelt's unprecedented succession of larger election victories forced the Court to yield to popular sovereignty.
             Popular sovereignty is the ultimate basis of our Constitution and government.  "We the People" are the ultimate judges, but the Constitution requires more than one modest election victory before major changes are valid.

 

I have linked to a previous page below about our constitutionalism.

DO WE BELIEVE IN CONSTITUTIONALISM?

     THE SUPREME COURT

AND POPULAR SOVEREIGNTY

By Ivan W. Parkins

 

     Should the Supreme Court of the United States adhere strictly to an originalist interpretation of the Constitution, or may the Court adapt constitutional language to historical trends?

 

     If one compares closely what was probably the greatest Supreme Court decision of the twentieth century, Brown v. Board of Education, cited in some arguments for a more “liberal” approach, I believe that he will see that the Warren Court’s holding differed little from Justice Brown’s holding in 1896 regarding the Constitution.  Brown said that the Constitution, Fourteenth Amendment, requires “absolutely equal treatment” of the races in public facilities.  The difference between the two was not on the constitutional language but on what, in fact, is equal treatment.  The old decision was that separate facilities could be equal; the newer decision is that they are not equal. Even if the words of law are seen to be unchanging, the facts to which they apply may change.

 

     The growth and mobility of our population and industry have certainly changed.  John Marshall’s original holding in Gibbons v. Ogden that “commerce among the states” meant that commerce that affects more states than one seems logical enough.  But, facts are certainly changing when mortgages that are issued by private banks under state laws become “toxic” and disruptive to national and world-wide finance.  Actually, many of those mortgages were granted by banks under federal pressure to extend credit to previously unqualified applicants.

 

     The Supreme Court’s great decisions on racial equality (1950s) and on equal legislative districting (a few years later) did represent some extensions of its authority.  However, these decisions were also major advances in popular sovereignty, advances that Congresses had, for decades, failed to make.  And they soon received the approval of most of the public.  In those cases, I believe that the Court honored the most basic of our constitutional principals, popular sovereignty.

 

     There is good historical ground for believing that major Supreme Court decisions of the period prior to World War II, when they conflicted sharply with actions of the elective branches, were soon overcome by popular politics.  Apparently, that is now less true.  One of the baldest evidences of more recent thinking is the statement of the late Justice Thurgood Marshall that he was only doing what the people would do if they knew what he knew. I remarked to my class in Constitutional Law at the time that the reasoning was remarkably similar to some by Fuhrer Adolph Hitler.

 

      Increasingly, we are faced with “entitlements” that alter the capacity of newly elected Congresses to make new policies and also with judicial references to foreign political entities as authoritative.  Such things are good reasons to fear that an articulate minority of Americans, strongly entrenched in the information media and some times successful in elections, will work with the Judiciary to limit the effectiveness of our Constitution’s most fundamental principal.  That principal is popular sovereignty. I.W. Parkins 041909

     WHAT IS HAPPENING TO AMERICA?

By Ivan W. Parkins

 

     America is facing a revolution, by mostly legal and peaceful means.  By revolution I mean a replacement of the old elite by a new one.  To accomplish that, the old elite must be discredited and driven from power.

 

     Actually, America’s old industrial/financial elite, powerful in the late nineteenth and early twentieth centuries, has been yielding ground for a century.  The New Deal weakened it substantially at first, but WWII and the successes of our huge armament production won it a reprieve.  That was followed by the rebuilding of most of our former allies and enemies.  Several decades of success in competition with the Soviet Union, plus our own growing prosperity, further inoculated the old elite against change.

 

     Meanwhile however, an old element of American society was benefiting from huge investments of both public and private money.  Communication, once a hireling and servant of larger social organs, was gaining vast influence in its own right.  Tens of thousands of prosperous writers, broadcasters, professors, and actors, plus even greater numbers of college students and new grads were increasingly able to communicate with one another. Added to unionized public school teachers and government bureaucrats, they were becoming a political phalanx to which industry and finance related more as client or tenant than as master.

 

     Only the American Presidency retained enough of its traditional popular following and vigor to defy the new elite, an elite with more legal immunities than the old one ever had.  And, the Presidents who have recently won by the largest popular margins have had to face particularly bitter and damaging mass media assaults upon their persons and their powers.

 

     If the intellectual elite can now capture this nation’s chief executive office with a candidate little encumbered by past public commitments, America’s future may indeed take a new turn—to what?

  THE MARRIAGE INSTITUTION

By Ivan W. Parkins

 

Gay marriage has recently been banned by a substantial majority of California voters, but that was overturned by a federal district court judge citing broad/thin “equality” grounds.

Historically, marriage between a man and a woman is an institution of most cultures, older and more deeply rooted than institutions such as democracy and constitutionalism.  Its primary function is to encourage and foster the preservation of the society itself, by means that will produce and nourish children.  It is not something to be altered lightly by any society/nation that expects to survive. 

Once, a century and a half ago, we dealt with the legality of equal rights for Americans of different races, our most bloody war.  And it took another century of civil and legal efforts to make that outcome reasonably effective. 

 

Just extending voting rights to women and eighteen year olds, during the past century required Constitutional Amendments XXIV and XXVI.  To treat a major alteration of  the marriage institution more lightly would be, at best, ridiculous.

FREEDOM’S CHOICES

Liberty (freedom) is a responsibility of it’s Citizens.

 Are you ready to defend it?  If not, it will disappear.

 

By Ivan W. Parkins

 

     We, and all of mankind, face an especially complex, but potentially fruitful, problem.  It is how much freedom? And it is especially, what freedoms for whom?

 

     Individuals are not, never were, and can be only briefly (as they die off), totally free.  Especially as numbers of humans have grown, we have compromised individual freedoms socially to enhance freedoms from natural hazards, and to make our lives more fruitful.

 

     That, for the most part, has been a gain.  Our more remote ancestors were much less free than we are.  But it was not due primarily to social rules or to other humans.  The first hominids faced natural hazards, as does every sparse and, in some respects, weak species.  By joint efforts and particularly by the cultivating and sharing of our unique mental and communications capacities, we have extended our freedom from many of nature's  hazards and become dominant among Earth's creatures.  The price of that is, and will continue to be, some restrictions of individual freedoms in the interest of communal security against hazards that can easily crush individuals or small communities.

 

     The principle is a simple one.  Its specific applications are increasingly numerous and complex.  The survival and advance of mankind has been, and can be, long lasting and grand.  The survival of most individuals can be made more likely and more self-satisfying, but only as individuals participate within a larger context.

 

     To this point in history, the most effective large unit of human cooperation has been the nation state, and organized as a constitutional democracy.  As Americans, we enjoy membership in a particularly successful one.  If we fail to support it thoughtfully and with our lives, we are likely to see that much of what we have valued as our freedom will disappear.