I came across a blog that pertains to Ron Paul called: “Ron Paul in Reality“. For those of you who have read my blog so far, you may already know that I am not a supporter of Ron Paul for president. Since I have yet to finish the series on him, however, I am not entirely opposed to his views of what people can and can’t do, and the limits of government. However, on another note, I have been following this blog, and commenting a lot. I was asked a question and I thought I would share it, and my response here:
“Since you say you have studied the Constitution, which candidate do you most see as fulfilling the wishes of the Founding Fathers?”
Here is what I responded with:
I really don’t see any candidate doing so. The thing about Ron Paul is that he is in favor of strict constitutionalism. He follows the same line of thinking for which Jeffersonian-Republicans had, which was grounded in legal positivism. This idea is that judges are simply to declare what the law is, they do not create law. This can be seen in Commentaries on the Laws of England by Sir William Blackstone. This form of constitutional interpretation has grown in popularity, much thanks to Ron Paul.
However there are other forms of constitutional interpretation. Oliver Wendell Holmes for example rejected the declaratory theory (Blackstronian), and said that much of the law has to do with the meaning of the words, and the context behind them. To quote him: “The life of the law has not been logic; it has been experience. The felt necessities of the the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
Another perspective for which the constitution is interpreted came from Roscoe Pound sometime around 1900, and it took the sociological aspects into consideration (sociological jurisprudence). This view took into consideration changing social forces. Pound however supported judges who became “social engineers” or your “activist judges.”
If you look to Miller v. Oregon, 208 U.S. 412 (1908), justice Louis D. Brandeis wrote two pages of argument along with 97 pages of scientific explanation behind why working hours should be limited on women – that scientific data had to do with the health risks of women who works extremely long hours, and further stated that social science data is important in order to keep the law on the same pace with the development of the political, economic, and social ideas. This is an important case because it draws upon both Holmes’ judicial interpretation, and heavily upon sociological jurisprudence – while also becoming a social engineer.
Following that, there were the legal realists which basically argued that Blackstonian interpretation was a fallacy because in all cases of judicial interpretation the judge always contorts the law. Basically, their argument was that Blackstonian interpretation, by arguing that judges only declare the law and not “interpret the law” that the greatest of injustices were occurring – and indeed that is true. Supreme Court Justice Frankfurter put in a good way: “I think one of the evil features, a very evil one, about al this assumption that judges only find the law and don’t make it, often becomes the evil of a lack of candor.” He continued on in a statement for which I personally agree with: “I, too, am opposed to judicial legislation in its invidious sense; but I deem equally mischievous–because founded on an untruth and impossible aim–the notion that judges merely announce the law which they find and do not themselves inevitably have a share in the law-making.” Lastly, he said: “So the problem is not whether judges make the law, but when and how and how much.”
This is particularly mind blowing, but in my opinion very true.
With all of that said, Ron Paul’s view of government is very strict, and in many ways ignores a lot of the sociological problems that occur. I cannot support his view of Abortion, or Gay Marriage. Interestingly, he would give the power back to the states, taking it away from the Government. Either way, there is a government deciding the matter. Roe v. Wade, in 1973, gave the decision both to the state, and to the people based on the 14th Amendment right to due process, equal protection, and privacy, as well as the Ninth Amendment to privacy. The ninth amendment also reserves rights to the PEOPLE which are not expressly stated in the Constitution and reserved to the states. Abortion and Gay Rights are two such rights that Ron Paul would invariably give to the states even though they should be reserved for the people. On that front, I feel that Ron Paul has a conflicting constitutional view on those matters.
To end, there are none that I feel will tackle constitutional matters, much less those pertinent to social justice, and problems.
More supplements may arise, and stay tuned for the rest of the series pertaining to Ron Paul. My intention here is not to sway people’s votes for another candidate, at this time I do not support another candidate. However, I do believe in voting, and I do believe that the strength and weaknesses of a government is simply a microcosm of a much larger problem: apathy among voters, and distrust towards the government. The United States government was supposed to be built upon the strength of its people and for the people for which it is meant to represent. The government is supposed to be afraid of its people, and yet people have become afraid, and apathetic of its government. Although you might read this as being contrary to my recent posts pertaining to Gary Stein, I feel that there is no contradiction here. Regardless, there are many ways to interpret the constitution. I do not believe that Ron Paul’s literal interpretation is conducive to progress, nor do I believe that it will maintain the inherent rights of the people of the United States.