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Neil Kumar

The Futility of Constitutional Originalism

9/11/2020

4 Comments

 
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Why did the United States Constitution fail? That it has failed is beyond doubt, as is the how, the method by which it was subverted and enervated; the question of why, however, remains open to debate. Did the Constitution fail because it was “open to interpretation”? If so, if its Framers truly meant for it to be “interpretable,” why was there no expressly delineated methodology for doing so? If one asserts, against the great weight of historical evidence, that the Framers did intend for our Constitution to be malleable to the ephemeral whims of our inferiors, one must still ask precisely how that interpretive work was to be done. The American “Right” answers the interpretability and malleability questions with an emphatic yes, and posits an equally emphatic “original intent” for its preferred rule of interpretation. This textual originalism has always been my approach, but it is almost as compromised as the laissez faire “living Constitution” perversion.

The Constitution was perfectly suited for the Anglo-American colonist-turned-citizen, the virtuous Christian man, and fell apart when God was removed and the Anglo-American disenfranchised through egalitarian mass democracy. Then, the Constitution was readily abused. Could the Constitution have been made “abuse-proof”? No more than a people can be made immune to the evil which stains their nature. The Founders acknowledged this in their recognition that a Constitution can only be as good as the people it purports to represent. Does this necessarily mean that the Constitution carried within it the seeds of its own destruction? Could it have been any other way? Aside from reserving American citizenship to “free white persons” in the very first session of Congress in 1790, the Founding generation did not feel it necessary to take any meaningful steps to ensure that their nation would remain the morally virtuous, white, Christian country that it was. They undertook no “citizen-building” program as they built the nation. Why? They didn’t need to. Though they had their concerns, there is no way that they could have predicted the decline and fall of their proud people into a subjugated heathenism.

i recently wrote a treatise on what I have termed the foundations of the Egalitarian Regime. On two installments, the same brilliant comment was left by H.V. Traywick, Jr., an excerpt of Hamlet, Act V, Scene I. Hamlet asks Horatio, “Is not parchment made of sheepskins?” Horatio answers, “Aye, my Lord, and of calfskins, too.” Hamlet concludes, “They are sheep and calves which seek out assurance in that.” I can picture in all too vivid relief the dark, irradiated wasteland that “the United States” will be in a decade or less, with a few surviving soot-stained former Republican legislators muttering to themselves, “At least we still have the Constitution.” What is the point, the purpose, of this exercise, of undertaking an exploration of what its Framers intended their Constitution to mean? What is the point of demonstrating that each daily depredation on our liberties is unconstitutional? In other words, who cares? Who is listening?

We have allowed unaccountable, virtually omnipotent kritarchs (whose power, mind you, comes only from our subservient refusal to challenge their atrocious usurpations) to unilaterally declare what is or is not “constitutional,” based on a bastardized version of “precedent.” The cocktail “conservatives” who parrot the originalist line today simply uphold the last eighty years’ worth of patently unconstitutional Leftist rulings, while the rest of American history is jettisoned into the ether. We have allowed our Constitution to become nothing more than meaningless, shapeless putty in the hands of demons. Again, the Constitution failed. The Founders placed their Republic into the hands of fools who proved themselves incapable of keeping it. The only possible purpose that I can see for investigating and illuminating the original intent is that Americans — specifically, white, conservative Americans — still at least nominally proclaim to revere the Founders and the Constitution. What will they do with this knowledge? If experience is any predictor, nothing.

Aside, though, from that one limited purpose, it has proven to be sickeningly ineffective to illuminate the original intent, at least for the purpose of using it to prove the egregious fraud and hypocrisy of the ruling class. Why is originalism an ineffective response to the destruction of America? Simple, really. Because the Enemy no longer even makes the pretense of claiming that it is the guarantor of the original Constitution. The Enemy is an acolyte of William Lloyd Garrison, who called that document “a covenant with death” and “an agreement with Hell.” The Enemy does occasionally claim that they represent the ideals of the new Constitution and the fictional egalitarian “founding” which they promulgate, but it does so while castigating the real Founding and demonizing the Founders and the Framers, effectively writing them out of history. When it thus contends, the Enemy claims to be the true standard-bearer for an “American” ideal that never existed, the guarantor of a “founding” wholly divorced from the Founders, the Constitution merely a vehicle easily altered and dispensed with, each new depredation celebrated as another step along the inexorable march toward the fulfillment of this ever-changing egalitarian myth that American history has been recast as. What good does wringing our hands and pulling out our hair over original intent do when the original America is precisely what the Enemy has sworn to annihilate?

​Originalism is a failure, just as our Constitution is a failure, just as the polity soon to be formerly known as the United States of America is a failure. Our response to our cultural genocide and physical dispossession cannot be to cling to a document which was eviscerated in 1865 and whose last remnants disintegrated through the first half of the twentieth century. Our response to ubiquitous calls for our deaths cannot be to wave a piece of paper around as if has magical properties. The Enemy has tossed the exsanguinated Constitution into the Valley of Gehinnom. If the reader believes that lawyers will save him, one hour in a law school will suffice to disabuse him of his hope. The Constitution is, for all intents and purposes, irrelevant to the struggle now in its nascency. We cannot return to the Republic any more than we can turn back time itself. Even if we could, we shouldn’t, for relying on the same Constitution which allowed itself to be penetrated is suicidal. What we can do instead, though, what we must do, is begin to plan for what comes next. Before even this can occur, though, we must take a good, long look in the mirror. We are to blame for the Hell that has been wrought of this land that once was ours. We must change ourselves before we can recapture our degraded nation from the talons of the ascendant Satan gorging himself on our ruin.
4 Comments
Keith Hayworth link
9/11/2020 09:47:02 pm

When we rely on five justices to interpret the law, the Constitution, human nature and the fabric of reality, the debate on orginalism certainly misses the real crisis. We have a fundamental epistemological problem in our civilization. It is rooted in the insane idea that truth is defined by individual choice. We see this both in religious and legal contexts. In the religious context, the Protestant Reformation failed to properly separate the unbiblical notion of private interpretation of Scripture from the biblical notion of individual access to the self-authenticating and authoritative Word. In the first case, individuals "decide for themselves" what the Bible means, thus making their own reason the final arbiter of truth. In the second case, the individual reads the Bible for themselves, but submits to the truth of those Holy Writings objectively.
Similarly, in our current legal context, the Constitution does not really have authority. The opinions of 5 justices has become the highest human authority. We are ruled by a court, we do not rule ourselves. Worse than the Oracles of ancient Greece, our new interpreters cannot even provide ambiguity to satisfy competing political philosophies. In other words, the Oracle often spoke in open-ended fashion, allowing the prophesy to adapt to virtually any outcome in the real world. Our current Oracles force cultural upheaval by denying the supposedly sovereign People their rights to write their own laws.
The real question is, how long do we play this game pretending that Supreme Court Justices are there for any other reason than to define legal reality? After all, isn't it really about power and control rather than procedure and precedent? Something is exceedingly evil about a system that places so much power into so few hands, while simultaneously extolling "democratic" values.
Here are a couple of modest proposals:
1) we should place justices on the Supreme Court who will actively set out to destroy the usurpations of the past.
2) we should remove any pretense of political neutrality for judges. Truth is is non-negotiable and not subject to interpretive hijinks.

When our highest court finds fault with, or seeks to expand, alter, adapt or in any way "improve" laws, why not simply require the said court to say, "we are not sure of this law, act, or statute, we want the legislature's opinion?"

Reply
Wesley Jones
9/12/2020 06:11:35 am

Great article, Mr. Kumar.

Mr. Hayworth, your right that truth is objective, not determined by the individual. But the reformation churches did not teach private interpretation. They rightly understood that the church, throughout history, interprets the word of God. Councils produced creeds and confessions: Nicene, Apostles, Westminster, Heidelberg, etc. in submission to the word of God. It was the radical reformers, aka ana-baptist, who privatized interpretation. So instead of one pope claiming ultimate authority to interpret Scripture, they had a million little popes. Same error, differenent side of the coin.

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Keith Hayworth
9/12/2020 05:45:31 pm

Yes, thank you Wesley. I was including a very broad characterization of the Reformation. My philosophy is closer to Cornelius Van Til than the antinomians. The real membets of Christ's church hear the voice of the Shepherd. We submit to apostolic authority, which is preserved in the Word of God and not in institutions or popes, bishops, pastors, etc. When His sheep read His Word individually with sincere and reverent devotion, they draw together on essentials, regardless of organizational unity. This agrees with the record of the New Testament which demonstrated that even the Apostles had their own disagreements in style, emphasis and understanding.
My main point is that subjectivism is fatal to any collective understanding of truth. It relegates the merit or harm of any idea into an egalitarian nihilism. Popularity becomes god. We do not need Supreme Court Justices to interpret the Constitution for us. It is written in English and we can read it on our own. Thanks again.

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StockDealerAndAFarmer
9/14/2020 03:53:58 pm

Before the rights and institutions of any man can be safe in the hands of another man, who entertains (and endorses) views hostile to the rights and institutions of the former, the latter must be re-educated. Together, somehow, those men must have a common sense. And, one man cannot harbor a veiled desire to dominate the other.

However, they do not need to be virtuous Christian men; recall Jefferson having a picked pocket or broken leg remark.

Lysander Spooner argued the 1790s Constitution has no force, ending when the Founding generation passed. It is not a contract between persons now existing. The Constitution, as their contract, died with them.

And that is even arguable; was it their contract? Or maybe it's the Articles of Confederation? The Founders broke AOC without consent to give birth to a more perfect Union.

Historically, the whole deal shines and stinks like a mackerel in moonlight.

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    Author

    Neil Kumar is a Republican candidate for U.S. Congress, representing Arkansas's Third District. He is a member of the Sons of Confederate Veterans and Sons of the American Revolution, with blood that has been Southern since the seventeenth century. His work can also be found at the Abbeville Institute, American Renaissance, Identity Dixie, Lew Rockwell, The Political Cesspool, Truth to Power, The Unz Review, and VDare.

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