They The People

“If Aristotle, Livy, and Harrington knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men. If this definition be just, the British constitution is nothing more nor less than a republic, in which the king is first magistrate.”ⁱ

That was then. 1775. Fourteen years later the United States also became a nation of laws, not men, when a constitution was written. True, there had been laws but they were not considered to be adequate. So a convention was called in order to correct the problems of the Articles of Confederation but those assembled produced a new, and far more effective instrument. It is the Constitution of the United States, under which we have lived for two and a quarter centuries.

It wasn't perfect. It was a compromise document. No one was completely happy, but all accepted it as the best they could get at the time. At the time. That's what a compromise is. There were conflicting opinions and competing “parties”ⁱⁱ and, in order to compose a document that would get the backing of enough of the participants, it was necessary to include the views of all of them – at least to some degree.

And, in order to get a sufficient number of the new States to sign on, it was necessary to agree to further additions.ⁱⁱⁱ But the constitution they had written took into consideration the likelihood that changes would be necessary in the future, and instructions were included for amendment. It's not easy – there have been only sixteen amendments in the 223 years since adoption of the Bill of Rights – but it can be done.

The question, however, is whether it should be done. Some feel that any attempt to change the document will result in a great deal of dissension in our country. The Founding Fathers were wise and they wrote a timeless document. The real problem is that we tinker with it rather than enforcing it. It ain't broke. Don't fix it. Follow it.

Others believe that it is broke. The original constitution may have been appropriate in its time, but that time has passed. The Founding Fathers (propertied white males), brilliant as they were, anticipated neither a country of this size and complexity nor the technology that now exists. Whether or not they agree with current interpretations, any changes should be written in rather than inferred. And questions remain: what does the Second Amendment mean?; should the President, whose authority was very limited in the original,^iv have the powers assumed by holders of the office?; what is the place of the bureaucracy in our current government^v and what should it be?; do the currently prescribed terms of office and the current election schedule make sense?^vi; should the Supreme Court be the final arbiter of what Congress meant, as it has asserted?^vii,viii And there are numerous other unanticipated issues which might be addressed head on. From their perspective, now is the time for a new compromise – new amendments or a new constitutional convention.

As I mentioned, changing the Constitution is no easy matter, but it can be done. Should it, though? Whether or not public opinion favors alteration or upgrading of the present document, there are considerations other than text that must be considered. What would be the mechanism of change? How can we incorporate the concept of "consent of the governed" in that new document and in the procedure to formulate it? Is there the possibility that the process will be compromised by fraud? Will "rich lobbyists" dominate the discussion of the proposals? Should the political season be limited? Does public involvement raise the specter of majority rule at the expense of the minority?

These are just a few of the many questions that come to mind when considering the reopening of this great document,^ix but it seems clear, since they provided for it, that the Founding Fathers both approved of, and expected, changes to be necessary. Until such time that it is done, however, it is incumbent on all of us to follow the rules that now exist, whether we agree with all of them or not. I don't, but we're a nation of laws, not men, and the ones that exist now are the ones we all have to live by.

In the next essay I'll offer some ideas about changing the Constitution. Perhaps some of them are feasible.

Next episode: “We The People” – It's time for a change.

I        John Adams, Novanglus Essay Number 7, 1775.

ii        Actually there were no parties at the time, but there were two main bodies of thought comparable to the parties we have today.

iii       The Bill of Rights.

iv       Out of fear that he would assume the role of King. They had suffered greatly at the hands of George III. They suffered at the hands of Parliament as well, but they feared the King more. Thus they made Congress primary (Article I) and the Presidency relatively weak (in Article II).

v        It has been termed “the fourth branch of government” by some (analogous to the Legislative, Executive, and Judicial branches established by the Constitution – the maker of most of the rules by which we are governed), but that term has also been applied to lobbyists and other interest groups.

vi      See “Cancel the Midterms,” David Schanzer and Jay Sullivan (New York Times, November 3, 2014)

vii     The writers of the Constitution had relatively little to say about the Judiciary, and they dealt with it after the Legislative and Executive branches (in Article III). There was no clue in the Constitution that it would take on the power it now has.

viii   Indeed. Will Supreme Court view Constitutional change as constitutional? Especially if it weakens them.

ix      Can of worms?

The Anniversary

Today is November 29^th, 2014. It is the 67^th anniversary of the United Nations General Assembly's approval of “Resolution 181 (II). Future government of Palestine.” Included in that resolution was provision for the establishment of “[i]ndependent Arab and Jewish States.” It called for a “Jewish” state. The United Nations General Assembly authorized the formation of a Jewish state.

The Jewish government-in-formation accepted the plan, although there were some who felt that by doing so they gave away some land that should have been part of a new state, since it had been ordained by G-d to be theirs. The “Arab” statesⁱ unanimously rejected any division, with the view that any Jewish state in their region was unacceptable.

For its entire historyⁱⁱ the State of Israel has been under attack by its neighbors, and by the world at large. In 1947 a majority of the UN may have approved the formation of a Jewish state, and in 1949, based in part on a recommendation of the Security Council, it may have admitted Israel to membership,ⁱⁱⁱ but the Arab nations have taught their children that Israel and the Jews are their enemy and that it is their^iv obligation to give their lives to destroy “the sons of pigs and monkeys.” And, benefiting from their numbers and from their oil, they have launched an extensive campaign^v to isolate and destroy Israel. The world has funded this effort with its contribution of billions of dollars, ostensibly for the improvement of the lives of the Palestinian people, but somehow not finding its way into that work.^vi The work the Palestinian officials do is far more important.

It is of interest that there is much concern among the nations that Israel may define itself as what the United Nations sought to form: a Jewish State. According to Wikipedia, “A state religion (also called an established religion, state church, established church, or official religion) is a religious body or creed officially endorsed by the state.” It lists twenty-one countries as Islamic.^vii There are also several with one variety or other of Christianity defining them or with Buddhism as the state religion, and this doesn't seem to trouble anyone. But Israel's claim is racist and a cause for outrage around the world. One Jewish state is too many.

It doesn't seem likely that there will be resolution of the problem in the near future – if ever. A few million people in a tiny land, however dominant they may be militarily at this time, cannot hope to prevail forever. Even if Israel were to find a substitute for oil^viii it would still have only one vote against dozens of Islamic states, and those states would be courted by the world's nations; and even if Israel could mount an informational campaign to illustrate the falsity of the accusations against it, there would be countless people who would continue to believe and spread the libels. It would take Israel's demise, and that of all Jews, with the world's problems continuing, to make it clear that in reality there are other causes which they are ignoring. But by that time it will be too late, and they will still believe that somehow or other the Jews were the cause of the troubles. Unfortunately, there is no obvious answer. Unless ...

Billions support them. All we need is One.

I        For the most part they are led and peopled by Muslims, but there are a few others as well.

ii       And before. Of course prior to 1948, when the state was declared, the aim of annihilation was directed at the Jews in general – by the Christians and the Muslims. That aim has, since the Holocaust, and since overt anti-Semitism has gone out of fashion, been directed against Israel. At least nominally.

iii      “Admission of Israel to the United Nations, General Assembly Resolution 273 (III), 11 May 1949”

iv       Primarily Muslims.

v        In the media, in public and political fora, on college campuses (including both faculty and students), among church leadership, and in those in whom they recognize the existence or potential for anti-Semitism.

vi       Much of it seems to have disappeared, so Hamas and the Palestinian Authority are seeking additional funding from nations around the world.

vii     The Organisation [sic] of Islamic Cooperation, which considers itself "the collective voice of the Muslim world,” comprises 57 member states. Afghanistan, Iran, Mauritania, and Pakistan are officially “Islamic Republics,” and others limit participation in any substantive aspect of public life of any but Muslims.

viii    And I suspect it will. Israel is a modern technological island in the middle of an area focused on the medieval era and its practices.

Look At Me – I'm A Liberal

“I'll be all in clover,

And when they look you over,

I'll be the proudest fellow

In the Easter Parade.”ⁱ

Irving Berlin was a sexist. He also wrote:

“The girl that I marry will have to be

As soft and as pink as a nursery.

The girl I call my own

Will wear satin and laces and smell of cologne.”ⁱⁱ

His view of women obviously was that they were people who were created to give pride to men, and to be the “soft” and “pink” possessions you could find in a nursery.

That perspective, though, was not unique. In the Book of Esther, King Achashverosh wished to parade his wife, Vashti, in front of his guests at a party. Even today it is a common practice for men who can do so to marry and display a “trophy wife.”

But if men have always whistled at beautiful women, women have cherished that attention and eagerly participated in beauty contests and pageants, vying with each other to establish superiority among those who dare to consider themselves peers or betters. And the status of wife and mother are still sought by the majority of women. Whether that preference is inborn or the result of our culture is not the point. What is more significant is that Berlin's views were the predominant ones – at least until recent years. He was saying in a poetic way what almost everyone believed.

Nowadays there is a totally different view of sex. (I'll pursue this issue further in a future essay.)  What used to be a private affair, both in terms of people and practices, is now flaunted in the media. Free sex is good.ⁱⁱⁱ LGBTQ organizations and their members are the darlings of the courts and of the press, and failure to laud and to respond positively to the demands of those once viewed as displaying deviant behavior is evidence of prejudice. Not surprisingly, there are many who eat it up. They may loudly proclaim their own conventional sexuality, but applaud those with appetites different from theirs. They kvell^iv at each report of someone “coming out of the closet” and praise his (or her) courage for doing so publicly. They shep naches.^v They feel his pain. The Constitution may not have recognized this group of oppressed people, but they do. They are sensitive to the feelings of those who are in distress, and they want the world to know it.

They're also so understanding of the feelings of others that they identify with those having with gender dysphoria.^vi From their perspective, anyone who doesn't see things their way is displaying evidence of prejudice.^vii There is no room for difference of opinion; they are sensitive and understanding, and those who see things differently are biased. With the granting to school children with gender dysphoria of the “right” to use the bathroom of their choice,^viii notwithstanding the feelings of those already using them, the courts are giving, to the confused, “rights” which take precedence over those of people who are certain,^ix and whoever disagrees with that approach is reactionary and insensitive. He (or she) is probably a religious zealot – a fundamentalist or some other form of hypocrite. He certainly has no concern about the views or feelings of others – only his own. After all, the dysphoric's defender is open-minded, as opposed to someone who thinks differently.

“Look at me.” Advertising their virtue is all they have to do. Once everyone else is aware of their bravery they can move on to another windmill.

For example, there is another situation in which some people seem to place their own feelings and views above those of others, though they claim the opposite and take pride in flaunting it. They make a point of adopting children who are not of their own race. At times they will adopt several children of different races. And at times they do so even though they are fertile and could have children of their own.

There are two messages^x that their actions declare: first that while others simply don't care, they are concerned over the sad fate of children who are not being reared by their own parents, and they are generous, brave, and sensitive to the needs of those children; and second, they are above making distinctions between people based on race or ethnicity. Indeed, they choose to advertise that disdain by a public act. They select the children they adopt because of their race, something which everyone else must notice.^xi It's a brave act and they are making a statement.

However they may see themselves, though, and whatever message they want to express about their views, they do not seem to take into consideration the feelings of the child, who will be reared by those parents and who will have to introduce them to his friends of all races. It will be obvious to him, and to them, that they are “other,” that he's adopted. And however they may try, they will not be able to teach him the customs and the heritage of his own race and those of his birth parents. His loyalties will forever be split, and he will live neither in the world of those who bore him nor those who reared him.^xii But the parent will have demonstrated to the world that he cares. As William Voegeli^xiii noted in The Case Against Liberal Compassion,^xiv “ … liberals care about helping much less than they care about caring.” He also notes,^xv “If you’re trying to prove your heart is in the right place, it isn’t.”

That's the problem. The details of the cases I described are very different,^xvi but in these instances someone was trying to show the world that he cared about the suffering of others and proudly he did his part to right the wrong. His heart was in the right place. But of course he was more interested in displaying his own sensitivity than looking for the best solution to the problem – especially if that way his own moral excellence would not be appreciated by all.

Our concerns and our culture have changed since Irving Berlin's day, and we are quick to criticize our predecessors' lack of sensitivity as we brag about our own. But what we're really doing is advertising ourselves as the purveyors of the current culture as we denigrate the culture of the past. And as we ignore the fact that our descendents will criticize our society and us for all our “isms.”

Next episode: “They The People” – It's time for a change? Well, yes and no.

I        From “As Thousands Cheer,” 1935.

ii       “Annie Get Your Gun,” 1946.

iii      Although women who charge for it are the victims of men.

iv       Boast, take pride, gloat. According to the OED this is US slang. I learned it as a Yiddish expression which focused more specifically on taking pride.

v        Another Yiddish expression. It's similar in meaning to kvell. However you usually shep naches over the accomplishments of a family member (usually a child) and bask in the reflected glory.

vi       Presumably if you “Enjoy Being a Girl” (“Flower Drum Song,” 1958) you have gender euphoria.

           Unless you're a boy.

vii      From their perspective G-d got it wrong, and they are obliged to set things right.

viii    See http://usnews.nbcnews.com/_news/2014/01/31/22520422-bathroom-ban-violated-transgender-students-rights-court

ix       Actually a girl doesn't have a specific right to use the Girls' Room nor a boy the Boys' Room, so there's no competition of rights. How that child or his parents feel is a secondary issue.

x        Three if they're fertile. They also show that they're concerned about overpopulation, and would prefer to adopt children already here than bring any more into being. (Incidentally, homosexual unions are a good way to limit population growth. Perhaps that's why they support them.  More on that subject in a few weeks.)

xi       Actually they do make distinctions between people based on their race or ethnicity. Their affirmative action in child selection is evidence of that.

xii      Perhaps his rejection by members of both races is an indictment of our society, but it is a reflection of the reality of the life we live. There is prejudice among all groups, and ignoring it puts those we love at risk. The same difficulty exists for the children of intermarried couples who also face prejudice and identity problems.

xiii     Senior Editor, Claremont Review of Books.

xiv      “Imprimis,” Volume 23, Number 10, October, 2014.

xv       Citing Philosophy Professor David Schmidtz

xvi     They're just two random points in the long spectrum of advocacy for the oppressed. Many others could have been cited and it's likely the reader is aware of some. But in these and in others, the guilt-ridden have no higher priority than standing up for what is politically correct. They care.

Lucky

I'm feeling maudlin and overemotional. Mawkish. I'm thinking about my place in the world. And you have to suffer for it.

- - - - - - - - - - - - - -

It's raining. The temperature is about 29 degrees. Fahrenheit. It's dark and windy and generally unpleasant out there. And I'm lucky.

I'm inside where it's dry and warm and well-lit. Not everyone has that luxury.

I'm lucky. My family and I are well enough off, we enjoy good health, and are blessed with above average intelligence.

I'm lucky. My wife and I have three children and thirteen grandchildren. None of them has a drug problem. None of my children is divorced. My eldest granddaughter is married and expecting her first child. My wife and I look forward to being great-grandparents.

And all of my children and grandchildren have stayed true to their religion. I'm lucky. The traditions I love will live a little longer.

But not everyone is so lucky, and, in addition to wondering why our lives have been so good, I sometimes wonder what I should be doing to help others. More than that, I sometimes wonder what obligation one person has to all the others.

Not that I doubt an obligation, but I feel almost powerless when I consider the problem faced by the world and the vast majority of people in it. Were I to liquidate all my assets and distribute them to those in need, it would have virtually no effect. Perhaps if the distribution were among only a few people it would help them, but it would have no effect on the billions of others in need. And if I were to divide equally what I have among them I would certainly be of no help to anyone.

So what should I do? I can give away all I have and destroy my own life, as well as the good of my family, but even by doing so I'm not likely to save the world. Yet the obligation remains, so I have to find a way to deal with it – somehow or other to share my good fortune. That's the teaching of my religion and traditions. But how can I do that?

The first thing I have to do is to lower my goals and expectations. I can't save the whole world – at least not in the usual way – but no one can. Perhaps I can help one person though. According to the Jerusalem Talmud (Sanhedrin, 22a), “ ... whoever saves one life, it is considered as if he saved an entire world." Unrealistic expectations are not likely to be met, but we can dream the possible dream, and sometimes even realize it.

And we can help the unlucky in ways other than with money. Numerous volunteering opportunities exist and it is almost a cliché to suggest offering your time for the less fortunate – though clichés, however sappy they may sound, are often true. But more than time, people can give of themselves – blood while alive and organs afterward.

We can also help those in need with our voices and our words. The education of others – individuals, politicians, media – by spreading the word about needs, will sometimes result in their providing the help that is beyond our own means. Our obligation is to convince them that they, too, have obligations.

Being lucky has a down side. No. It has another side. Abraham Lincoln said “ … my concern is not whether God is on [my] side; my greatest concern is to be on God's side, for God is always right.” Whether luckiness is divine or random, whatever you believe, the obligation of the lucky is to be on the right side, and to help those who do not share their luck.

Come in from the rain. But don't forget those who are still outside.

- - - - - - - - - - - - - -

There. I'll stop making you suffer.

L'chaim

I should be dead.

I do everything wrong.

That's enough of the philippic. Let me get down to facts. I'm not being responsible. I'm supposed to walk 10,000 steps every day. I read that somewhere so it must be true.ⁱ But I don't do that much and I never have.ⁱⁱ And I don't jog, either. How am I supposed to keep fit? I like sitting in a comfortable chair listening to music and nodding off. And when I'm tired of that I take a nap.

And my food habits are wrong too. I love fat and salt. It was good enough for ancient sacrifices and it's good enough for me. Especially burnt fat.ⁱⁱⁱ An olfactory and a culinary treat. And I should add that I like other foods burnt as well – especially meat. From my perspective vegetarians are missing out on the best foods in order to satisfy some sort of religious belief system. Now I'm all in favor of religion, but they've missed the mark by quite a lot. And vegans are the worst. I think they're like Vulcans and come from another solar system.^iv In any event, I'm a carnivore.^v

There are some other facts worth mention: I'm twenty pounds over what one internet program tells me is my ideal weight. That must be because I love junk food – particularly cheese balls and potato chips. But I don't want to sell cake short (or shortcake for that matter), or cookies, candy, and Coke (especially the “Classic” variety).^vi I already mentioned that I love fat, even the saturated and trans varieties though I usually don't read food labels to see if they're present.

I don't take megavitamins, fiber, or food supplements, and I'm not a fan of anti-oxidants or the nine (I think it's nine) portions of fruit daily that will provide them. You can be sure I don't eat an apple every day (nor do I take a shower, so I don't have to worry about keeping the doctor away). I love gluten and high-fructose corn syrup. 

I prefer tap water to the bottled variety – especially to bottled water with all sorts of supplements and food colors in it. I also avoid all of the products that are supposed to support my immune system. (It's bewildering that so many people eschew immunizations for their children based on “scientific” studies long discredited and retracted.) I avoid “immune support supplements” like the plague (and yogurt).

 

I love inorganic and unnatural foods. Especially those that have been radiated and are derived from sources that contain genetic modifications. They tend to last longer and have fewer bugs and other pathogens. And they're usually cheaper.

I didn't mention, but now I shall, that I don't stop and smell the roses or hug trees. And I don't talk to my plants, although sometimes they talk to me.^vii I've been in a few automobile accidents – the last when I lost consciousness while driving^viii – and a plane crash. So far I'm still alive.

But I'd better watch my step or I'll die young. No, wait. It's too late for that. But I should still correct my behavior in order to add to my years. Though I've never been convinced that that was such a good idea. As John Mortimer wrote, “I refuse to spend my life worrying about what I eat. There is no pleasure worth forgoing just for an extra three years in the geriatric ward.”

And I wonder if it would do any good anyway. Linda McCartney, Paul's first wife, was a vegetarian and an animal rights activist – an active member of PETA. She died of metastatic breast cancer, and one of the comments made after that was that she shouldn't have died. “She did everything right.”

So what's the answer? Can you prolong your life by doing everything right? Do you want to? And do you shorten it by doing things wrong?

There is no answer. G-d (or fate or whatever else, if anything, in which you believe) governs the length of your life irrespective of what you do. That's not to suggest that you engage in risky behavior like smoking, drinking, and texting while driving, but only that some of the things people do in search of immortality are overkill. Engaging in health crazes is not only costly, it's close to useless. From my perspective, the best approach is to do whatever you enjoy the most and believe is most responsible and best for you and everyone else (even if it's vegetarianism) without getting caught up in all the latest fads – especially those that promise eternal life or bliss.

When you try to cheat death you only cheat yourself.

Next episode: “Look At Me – I'm A Liberal” – I'm sensitive.

I         I think it was in a blog, and all bloggers know what they're talking about, and they're all in agreement.

ii       But who's counting?

iii      That's the way they served up sacrifices, and they knew what they were doing.

iv       Or universe. Or reality.

v        Actually I'm an omnivore (as long as it's kosher) but I don't like to waste my calories on salad and other varieties of animal food. (In truth, no calories are wasted. They all go to the common good. And the individual waist.)

vi       As you can see, I favor the C food group, and that includes Cheese balls and potato Chips. Of course when Linus Pauling urged us to take large amounts of vitamin C, I knew it was just a crock.

vii       I must admit that I find that somewhat unnerving.

viii     I've had no problems for the last few years having returned to driving after about a month of medical tests.

An Offer You Can't Refuse

“Sorry about your folks. That was a nasty little accident they were in. It's a shame they couldn't avoid it.”

“Yeah. Right. But somehow I don't think you're really sorry.”

“You got it. I don't really give a damn. Just trying to be polite. It won't happen again. By the way. This means a big inheritance for you. The business and their entire estate. A nice piece of change. Of course you'll want to give a quarter of it to us.”

“No I won't! Why should I?”

“Because I said so.ⁱ Call it a 'death tax.' And we want twenty-five percent of the business's gross receipts after that. We have ongoing expenses and it's in your best interests to help us pay our bills.”

“No it's not. This is extortion.”

“You really should watch what you say. People who shoot off their mouths sometimes regret it afterward. We got expenses and they don't come cheap. Don't think of it as your money – think of it as your life. After all, we provide you with protection and security, and a lot of other services.”

“Well I don't want all of them. I can take care of myself. And I don't want a silent partner.”

“Look, buddy. This ain't no democracy. Agree with our top man or you're out – and you know what that means. We make the rules. And if you want to take care of yourself, we'll take care of you. Understand?”

----------------------------------------------

Mafia shakedown?

No. An IRS assessment. Your government in action. There's no such thing as a free lunch; someone has to pay. And you're someone.

When the Constitution was written,ⁱⁱ both the power of taxation and the kinds of programs for which the government had to pay were quite limited. Congress was permitted only certain delimited activities, in line with the thinking of the majority of delegates to the constitutional convention. There was no income tax and the primary specified responsibility of the Federal government was the provision of defense. There was also provision for the “general welfare,” but the meaning of the term was not spelled out and both times it was usedⁱⁱⁱ it was associated with the national defense, suggesting that the “welfare” that was intended was the protection of life, liberty, and the pursuit of happiness (property).

Times, however, have changed. I don't know the numbers and the percentages – I made them up – but the principle holds. The government can decide to fund whatever it wants and you, the taxpayer, will pick up the tab. You can complain all you want,^iv and protest the use being made of taxpayer money, but it won't do you any good. Talk is cheap, but programs are expensive.^v

Indeed. Times have changed. And perhaps we've changed with them. All three branches of government are more “liberal” than they were when America was founded. In that respect they reflect American society. We feel responsible for each other, and approve of governmental efforts to help everyone who asks. We have the luxury of speaking out and promoting virtue without it costing us anything. We're the good guys. Whether it's medical care for the uninsured, conventions and travel for our representatives and for the bureaucrats, food stamps for the poor, funding for (what the government considers) the arts, old-age pensions, transportation subsidies, provision of jobs for the unemployed, or whatever, we're all for it. That's why we have government. It will fund it.

The government is a lot like the Mafia, though. Whatever they do, it's with your money. The government isn't funding all these programs. You are. You're not getting a free ride. And they're doing it without your knowledge and consent. Sure you have representatives, but they're very much like the mob's soldiers – lots of bluster but little influence or independent authority. All you do is give them your tax money^vi and their bosses do whatever will get them votes and whatever they^vii see fit. Not that you have any choice.

After all, this ain't no democracy.

Next episode: “L'chaim” – To life.

I       Not a very good answer, but when some people say it you have to take it seriously.

ii       1789.

iii      Preamble and Article I, section 8.

iv      It's a free country, isn't it?

v       If Congress and the President approve of the program, you pay. Even if your representative voted against it, you pay. But if you voted against the representative, you pay. And if you boycotted the election and didn't vote at all, you pay. Are you beginning to see a pattern?

vi       Although you may find ways to minimize the bite – legally and otherwise. That's what accountants are for.

vii      And the lobbyists who court and support them.

Original Intent

I'm one of those people who are reluctant to put words in someone else's mouth. It's a real problem. Straw men are so much easier to knock down than real ones, and they don't fight back. But my inclination is to take people at their word.ⁱ It's not always easy – not because I disagree with them but because I don't always know what they said. So if I want to consider and deal rationally with those words, I'm at a disadvantage.

There was a time when I didn't care what their opinions were; I knew how things should be even if they didn't. Their words were interesting, but only from a historical point of view. I and my contemporaries were as smart as they, and we could reach logical conclusions without their help.

It didn't take long to realize that many others held the same point of view. The only problem was that different people had different “logical conclusions” concerning the same sets of facts. The situation was chaotic – even anarchic at times. Even when the statements made by our founders seemed clear and reasonable, there were many who ignored them because they knew better. When they thought changes were needed they were quick to suggest them.ⁱⁱ Even so, they seemed eager to concede that their ways might not be the best for everyone. At least not for those from other cultures. Right and wrong depended on the teachings of those cultures – they were not absolute. That was my view when I was young.

But as I grew older my thinking changed and it became clear to me that some things were absolute. And I knew what they were. Interestingly I found that many of the truths which I knew to be valid were stated in the Declaration of Independence, and in the context of that declaration and the conditions it described the Constitution seemed, for the most part, like an eminently sensible document. The “Founding Fathers” were on to something, and the idea of radically changing it, whether through legislation or the courts,ⁱⁱⁱ was both a denial of common sense and of our heritage. It's original meaning, and their original intent, should, for the most part, hold sway.

It didn't take long, however, to recognize that we often lack understanding of what that intent was.^iv Although some of the participants took notes and explained what they had in mind, the keeping of records was discouraged, so our knowledge is limited. It's clear, though, from the writings of the time,^v that the Constitution didn't mirror the intent of all the participants; it was a compromise document. And some of the words they used in the eighteenth century had different meanings then – not the ones they have now. Additionally, perhaps some of the words are misprints or other kinds of errors.^vi

What also governed their decisions were the conditions of the time: the conditions they had endured under the English King.^vii That was the context which dictated their intent.^viii

Thus extensive reading and preparation were necessary to understand what the intent was, but it was worth it. And a great appreciation of their foresight resulted. It became clear that their debates resulted in nuanced language and principles that could be applied to most predictable conditions not just those existing at the time but ones that would arise later to test our system. It was also apparent that in some cases judicious – sometimes judicial^ix but not always so – interpretation of our founding documents would be necessary.^x And when such clarifications now emerge – whether through the passage of new statutes or the (re)interpretation of old ones, they are the law of the land. Moreover, the founders realized that there would be a need for amendment^xi of the original document and they provided for it. It's difficult but possible.

Also confusing the issue is the question of whether a particular view expressed then related to a specific problem faced at that time or whether its author saw it as a general principle. How would he apply it, if at all, to a new but, at least from our perspective, analogous situation? Does our extrapolation of the principle faithfully reflect what he would have thought had he lived now?

But an important question remains: “So what?” That was then this is now. Should we in the twenty-first century be bound by eighteenth century thinking? Should we be bound by agreements to which we were not signatories?

Fortunately, however, those are easy questions. The answer is “Yes!” To both of them. If we consider those documents and concepts erroneous we should change them, difficult as that may be. But we should not ignore them. Our society is based on the rule of law, and the rulebook is an old one. We cannot flout our heritage because we didn't make it, any more than we would refuse an inheritance because we didn't earn it.

For me, then, it is clear that the law is the law, and like it or not^xii we are bound by it. Given the opportunity, I would favor reliance on the words of the founders to the extent possible, with interpretation limited to unmistakable analogies unless we, the Founding Fathers of our generation, decide otherwise by altering the document on which our society is based.

Next episode: “An Offer You Can't Refuse” – Try at your own risk.

PS.  Tuesday, November 4th is election day.  Don't forget to vote.

I        In this case my primary – but not exclusive – interest will be in the words of our Founding Fathers. I'll be referring to them when I don't specify otherwise.

ii       In some instances, however, they had a low tolerance for change. From their perspective – and I am in full agreement – it was only fair if they could pass on their property to their children when they died. It might be reasonable to give public funds to satisfy all sorts of interests – whether the poor, the arts, snail darters, or whatever – but not their money. (They didn't realize that the “public funds” were their money – money whose free distribution is something which, from my perspective, needs to be rethought.)

iii      Or by Presidential decree.

iv      The same is true of Shakespeare and other literary figures. Often we need explanatory notes if we are to understand what they meant. And there are times when the expositor reads (his own) ideas into their words, ideas that, in all likelihood, were never there, attributing them to the author's unconscious, and praising their prescience.

v        Expressing ideas as disparate as the ones we have now.

vi       That's the explanation often used in rabbinical writings. Since there is a general principle in Jewish law that the words of earlier authorities cannot be changed, more recent expounders have to “understand” their words in a way that might not be obvious. They “correct” “erroneous texts” and interpret what their predecessor “meant,” which may be very different from what he said, or they describe unlikely scenarios or conditions that circumscribe the effect of his ruling.

vii      More about the King and the Constitution in a future essay.

viii     Our current context is very different but that doesn't invalidate the Constitution.

ix       In Marbury v. Madison the courts arrogated to themselves the power of the last word in most cases and, for better or worse, that action was not contested.

x        The same is true in other areas. For example, reading religious texts without explanation and interpretation can be difficult. While interpreters often disagree, their discussions may unlock ideas whose presence will have been unexpected. They might also surprise earlier authorities – but that doesn't disqualify them. If those earlier authorities didn't anticipate changed conditions that were in their future, they wouldn't have guessed at the questions they might raise. We can only hope that their wisdom provided enough guidance for us to answer those questions while remaining true to their principles and intent.

xi       In fact, the Bill of Rights – the first ten amendments – was a precondition for ratification by many states.

xii      And there's much I don't like.