Recent talk on constitution at BYU

[natasha]

I was directed to this talk by a friend....given quite recently at BYU. I thought it was a very thought provoking read.

http://speeches.byu.edu/index.php?act=viewitem&id=2069" onclick="window.open(this.href);return false;

[Col. Flagg]

A talk on the Constitution at BYU? :-\ What would they know about the Constitution when all they do is invite modern day Gadiantons like Cheney, Brzezinski, Patraeus and Rice to speak to their graduating student body with no thought about ever inviting true Patriots like Ron Paul or Chuck Baldwin? Sorry Nat... had to take the jab because it is deserved.

[gclayjr]

Col Flagg... Mr. Ad Hominem... which do you hate more, BYU or natasha?

Maybe if you read the talk natasha referenced you might give further thought to the following quote from it

Disagreement is critical to the well-being of our nation. But we must carry on our arguments with the realization that those with whom we disagree are not our enemies; rather, they are our colleagues in a great enterprise. When we respect each other enough to respond carefully to argument, we are filling roles necessary in a republic.


But then guess that is not your nature.

THanks for the reference, Natasha

Regards,

George Clay

[skmo]

Flagg, George has a good point. Being derisive isn't always an effective strategy. I certainly don't always follow that advice, and in fact, I'm terrible at times, but I do recognize that sarcasm isn't a type of communication Jesus would use.

Duh!

[Col. Flagg]

Col Flagg... Mr. Ad Hominem... which do you hate more, BYU or natasha?

Neither - Nat is a good friend of mine - we just disagree about some things on a few fronts and that's fine and I don't hate BYU - I just prefer to call a spade a spade when I see it.

Maybe if you read the talk natasha referenced you might give further thought to the following quote from it

I don't need to read it to justify my comment because it's valid either way.

Disagreement is critical to the well-being of our nation. But we must carry on our arguments with the realization that those with whom we disagree are not our enemies; rather, they are our colleagues in a great enterprise. When we respect each other enough to respond carefully to argument, we are filling roles necessary in a republic.

But then guess that is not your nature.

This is 100% the relationship I have with Nat. George, did you wake up on the wrong side of the bed today?

[Col. Flagg]

Flagg, George has a good point. Being derisive isn't always an effective strategy. I certainly don't always follow that advice, and in fact, I'm terrible at times, but I do recognize that sarcasm isn't a type of communication Jesus would use.

Duh!

Who was being sarcastic? I was merely stating a fact.

[AussieOi]

Oh I love irony
jumping on flag for (not actually) jumping on Natasha.
classic

[mes5464]

My assessment based on this one speech is that Judge Griffith is an apostate and a socialist/communist/fascist.

Seeking Understanding in History and in Law

Here he lays the foundation for the argument that the Constitution is out of date and not relevant to our day.

But here’s some bad news: it’s hard work to understand the Constitution. At least it’s hard work if you try to understand what it meant to those who wrote and ratified its provisions. In my view, that is the understanding we must seek. Many of the provisions in the Constitution were agreed to by citizens who lived in the eighteenth century—a world in which the language, customs, understandings, and problems were, in many ways, different from ours. Understanding their language can be hard work: What is a “letter of marque and reprisal” anyway? Or how about a “bill of attainder”? More difficult still is understanding the problems they were seeking to address. It’s been a while since we’ve labored under a monarchy or were compelled by law to give financial support to an established church. Do you really think of a standing military as a threat to your liberty? And what of the argument of the day in the 1780s that the new United States should mimic the unified island nation of England and Scotland rather than the federated cantons of Switzerland? According to Professor Akhil Amar of Yale Law School, this particular view of things “informed much of the . . . Constitution’s overall structure and many of its specific words.”2 But what if you are not up to speed on the “general geostrategic vision”3 of Americans in the late eighteenth century?

Here he lays the foundation that the Constitution should be changed. He plants the seed that the founding fathers were acting out of selfishness and not inspiration. This we know to be false since Jesus Christ has endorsed our Constitution.

77 According to the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles;
...
80 And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.

Do you get the sense that understanding the Constitution may involve more than casual reading?
Of course, there is an easy way out. Rather than wrestle with what the text of the Constitution meant to those who ratified its provisions, one can take the view that the Constitution was in large measure the work of dead, white, racist men whose views shouldn’t have much, if anything, to do with how we order our society today. Under this view the Constitution is little more than a license to do what is right by our current lights, by our changing standards of decency. Some argue that we needn’t be shackled today by language in the Constitution that seems obscure or by restraints that are inconvenient to modern objectives. Some speak of a “living Constitution” whose meaning changes with our times. Using the phrase “living Constitution” suggests, however, that the Constitution that has actually been ratified is not quite alive, or is, in the words of the renowned constitutional scholar Miracle Max, “mostly dead.”4 Proponents of the living Constitution call upon unelected, life-tenured, and politically unaccountable federal judges—like me—to keep the Constitution up to date. According to this view, federal judges should be the arbiters of the nation’s evolving standards, which we should read into the Constitution. Of course, that is far easier than submitting to the cumbersome and difficult amendment process set forth in the ratified Constitution. But as is often the case with the easy way out, this approach is fundamentally flawed.

At this point he attempts to establish himself as a moral person but that his sense of right and wrong have no place in law. He attempts to disassociate himself from moral responsibility by making the argument that he is only following the law (only following orders). He does that in 4 ways:
1) America votes for the representatives so the laws must be accepted.
2) I must follow the law whither it is moral or not. Here he is renouncing his responsibility to judge the constitutionality of a law and ignoring jury nullification. Just because something is legal doesn’t make it moral or just.
3) Misrepresenting the Constitution by implying that “we the people” trumps “me the individual”.
4) Calling the USA a democracy when it is in fact a constitutional republic. The majority has no authority to vote away the rights of the minority.

This ignores several principles taught us by Jesus Christ through his prophet Joseph Smith.

1) When the wicked rule the people mourn.

9 Nevertheless, when the wicked rule the people mourn.

Elected government doesn’t necessarily mean moral government.

2) The laws can (have) been corrupted.

22 And that they had altered and trampled under their feet the laws of Mosiah, or that which the Lord commanded him to give unto the people; and they saw that their laws had become corrupted, and that they had become a wicked people, insomuch that they were wicked even like unto the Lamanites.

2 For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted.

Lest I be misunderstood, you should know that I have firmly held views about right and wrong, and I call upon them to make decisions in my own life, to teach my family, and to participate actively in my faith and as a citizen of this nation—but not in my work as a judge. Through their elected representatives, the American people have made their decisions about right and wrong and have put them into law. My duty as a judge—a duty I have taken a solemn oath to abide—is to use all the skill I can muster to understand the words in the laws and apply the judgments they codify. When I do, I reinforce the most fundamental principle that undergirds the Constitution: that “we the people”6 decide the rules of our society through our elected representatives. To use my own views of what is right and fair and just would not only violate my oath of office (significant transgression enough!) but would also undermine the very foundation of democratic governance. As Professor Amar observed, “No liberty was more central [to the Framers of the Constitution] than the people’s liberty to govern themselves under rules of their own choice.”7
Judges who replace the judgments expressed in the words of the Constitution with their own views of what is right, what is fair, and what is just take from “we the people” the liberty that is most fundamental: to create government “of the people, by the people, for the people.”8

The Hard Work

Here he testifies to the corruption in the judges. This is best illustrated in the Book of Mormon.

27 And now behold, I say unto you, that the foundation of the destruction of this people is beginning to be laid by the unrighteousness of your lawyers and your judges.

Permit me a personal story that illustrates the difference between the hard way of understanding the Constitution and the easy way out. The day after the Senate confirmed my nomination to the D.C. Circuit, I was the happy recipient of many congratulatory messages in my office in the Administration Building here on campus. One came from a friend who was a former law partner—a person whose experience I value. He had served as a law clerk first to a distinguished judge on the court I was about to join and later to a storied justice on the Supreme Court. My friend asked if he could give me some advice about being a judge. I was teachable and anxious to hear what he had to say.
“The first day of my clerkship on the D.C. Circuit,” he said, “my judge told me, ‘This is how we go about our work: First, we learn the facts of the case. Next, we think long and hard about the fair outcome, the equitable disposition, the just result. Then we go find law to support our conclusion.’ From what I have observed,” my friend continued, “that is how most judges go about their work, and rightly so.”

Here, he again is derelict in his duty to judge the constitutionality of the law. I am in no way for activist judges, but all judges have the responsibility to limit government by ensuring that laws passed do not infringe on the rights protected in the Bill of Rights.

The purpose of the call was congratulatory. It was not an invitation to engage in a debate over the role of a federal judge under the Constitution, and so I simply thanked him for his words. But as I hung up the phone, I took a vow that I would never follow my friend’s advice.
So this is what I tell my law clerks their first day in chambers: We, the people, have elected representatives who make the laws that govern our society. When a federal judge is called upon to resolve a dispute, he must first understand the nature of the controversy (on this count my friend’s advice was sound), but then he must work to understand the meaning of the law that governs the disposition of the case. As Justice Felix Frankfurter put it, the judge is merely the “translator” of the law’s command.9
BYU law professor Brett Scharffs explained it best: “Following the law places a judge in a role that is, in large part, clerical, where he labors largely as a functionary, applying and implementing the law. . . . The judge’s primary task is to find and follow the law.”10 In that search, the judge must parse the words that have been put into law. Their meaning is his command, not his own views of what is right. He follows the law as it was enacted; he does not lead the law to where he believes it should go.

On this point he and I agree.

My point is only this: important texts deserve careful and close reads. When we engage in that type of study, we learn things about the text’s meaning that don’t yield themselves to casual reading and that may be somewhat surprising.

The Second Amendment

In his example of the 2nd Amendment I think he was more successful in illustrating that error of man to attempt to enact laws without the counsel and guidance of God. In this specific example God has given us a great deal of advice.

14 Now the Nephites were taught to defend themselves against their enemies, even to the shedding of blood if it were necessary; yea, and they were also taught never to give an offense, yea, and never to raise the sword except it were against an enemy, except it were to preserve their lives.

46 And they were doing that which they felt was the duty which they owed to their God; for the Lord had said unto them, and also unto their fathers, that: Inasmuch as ye are not guilty of the first offense, neither the second, ye shall not suffer yourselves to be slain by the hands of your enemies.
47 And again, the Lord has said that: Ye shall defend your families even unto bloodshed. Therefore for this cause were the Nephites contending with the Lamanites, to defend themselves, and their families, and their lands, their country, and their rights, and their religion.

17 And they entered into a covenant to fight for the liberty of the Nephites, yea, to protect the land unto the laying down of their lives; yea, even they covenanted that they never would give up their liberty, but they would fight in all cases to protect the Nephites and themselves from bondage.

The Commerce Clause

Now, others may disagree, but the following looks to be his efforts to defend Obamacare, Wickard v. Filburn, United States v. Darby. All of which are indefensible since these examples illustrate Satan’s plan to deny man his agency.

My next example comes from the Supreme Court’s recent decision that upheld most of the provisions of the Patient Protection and Affordable Care Act,20 called “Obamacare” by some. The argument over the act in the courts was not about how best to provide healthcare in America. Rather, the debate was over a much larger question about the role of the federal government in our lives. That debate turns, somewhat surprisingly to many, to a provision in the Constitution known as “the Commerce Clause.” This clause is set forth in Article I of the Constitution, which describes the enumerated powers granted to Congress: “The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”21
Defenders of the act argued that the phrase in the middle of the Clause—conferring on Congress the “Power . . . to regulate Commerce . . . among the several States”—laid the foundation on which Congress rested the most controversial provision of the act: the mandate that each person must purchase insurance or suffer a monetary penalty.
You may not like the idea that a majority of Congress can tell you that you must buy health insurance or pay a penalty. After all, you’re young, healthy, and free. On the other hand, you might think it’s a really good idea to compel everyone to participate in a market so that people who have not been able to afford health insurance will be able to do so. But the hard work of understanding the Constitution requires more than simply asking yourself which policy you favor. And in this instance, as with the Second Amendment, the hard work of understanding the Constitution requires an understanding of some history. Follow me on a brief excursion into our economic past.
Recall that the Constitution was born out of the ashes of political failure. Our young nation first attempted to create some form of a union with the Articles of Confederation. But rather than unifying our thirteen ragtag colonies, the articles exacerbated the different political and economic interests “among the several States.” Chief among the complaints directed at the Articles of Confederation was that they encouraged the states to protect their narrow economic interests, to the detriment of the other states. Thirteen separate political bodies authored tax codes and regulatory regimes, favoring local goods and producers over those from other regions. Virginia and the Carolinas had tobacco. Pennsylvania had wheat. Connecticut and Massachusetts had fish. New York had shipping. And so on. Such a system might enrich a few local producers but it could not create a truly national economy. And without a national economy, America would be relegated to second-tier status, always lagging behind those nations that make it easy to buy and sell across regions and oceans, enlarging their economies and enriching their citizens.
As part of an effort “to form a more perfect Union,” we, the people, gave Congress the power “to regulate Commerce . . . among the several States.” In other words, Congress can regulate goods that are produced in one place and sold across state lines—like wheat grown in Pennsylvania and sold in New York. And the Supreme Court said, in a case called United States v. Darby, that Congress can even regulate the inputs to goods that travel in interstate commerce—like the wage a farmer pays his field hand for harvesting wheat in one state and selling it elsewhere.22
But in 1942, in a case called Wickard v. Filburn, the Supreme Court articulated an even broader scope of the Commerce Clause.23 Congress, the court said, has the power to regulate activity that has a “substantial effect”24 on interstate commerce. In Wickard Congress had enacted legislation that imposed a quota on the amount of wheat that could be grown. Administering this law, the secretary of agriculture forbade a farmer in Ohio named Roscoe Filburn from growing wheat on more than eleven acres of his farm. Filburn disregarded that directive and grew wheat on twenty-three acres. The secretary ordered Filburn to destroy the excess crops and pay a fine. Filburn challenged the secretary of agriculture in court.
Filburn grew wheat only for use as chicken feed on his own farm. He did not sell his wheat to anyone, let alone to someone across state lines. Filburn argued in court that Congress had no authority to limit the amount of wheat he grew because none of it was entering interstate commerce and Congress could not regulate his conduct that was not in interstate commerce. To the surprise and consternation of some, a unanimous Supreme Court decided that the wheat quota passed by Congress and enforced by the secretary of agriculture applied to Filburn because his decision to grow and consume his own wheat substantially affected the price of wheat produced for interstate commerce. As the court saw it, if Wilburn grew his own wheat for chicken feed on his farm, he wouldn’t be going to the market to meet that need. Not buying that wheat on a market in which wheat was traded nationally would, in the view of the Supreme Court, substantially affect interstate commerce. Because Congress has the power to direct activities that substantially affect interstate commerce, so the argument goes, Congress had the power to tell Filburn he could not grow more wheat than the quota, even though his wheat would never enter interstate commerce.
How far does this view of Congress’s power extend? Supporters of the Affordable Care Act argued that people who choose not to buy health insurance—like Filburn not buying wheat he could grow himself—drive up the price of insurance for those who do purchase it. Their action—or inaction—substantially affects the national market for health insurance, and the Commerce Clause gives Congress the authority to regulate their inaction.
But that cannot be correct, say opponents of the act. The ability “to regulate interstate commerce”25 cannot be extended so far as to encompass the ability to regulate inactivity. Stretching the Commerce Clause that far would mean that Congress could regulate anything that has even the most tenuous influence on interstate markets. There is a difference, they argue, between regulating someone who is participating in a market and forcing someone to enter a market.

Here he is explaining that Obamacare is in fact an example of a group of people voting away the rights of another group of people. Authority which neither the individual or the collective possesses. Obamacare, Wickard v. Filburn, and United States v. Darby are in fact socialism/communism and the opposite of agency. In essence government is forcing some people to spend money to profit and benefit someone else. It is taxation, not through government, but through corporations. It is bondage and tribute.

These two competing views of the Affordable Care Act reflect a debate as old as our nation. Proponents of a broad view of the Commerce Clause generally trust Congress, as representatives of we, the people, to regulate anything it determines has an aggregate effect on interstate commerce. Skeptics of congressional power, on the other hand, distrust Congress to police the limits of its own power. They see a fox guarding the chicken coop.

The Responsibility of Citizenship

Once again, here, he and I agree.

This idea has ancient and venerable roots. Aristotle understood citizenship to be more than simply reaping the benefits of others’ participation in the civic and political life of the community. The work of citizenship, he taught, is hard work that calls upon us to use our best thinking, our most careful study, and our most rigorous analysis.30

In the following he seems to promote the idea that there is not right and wrong. As he said, “But there can be a danger in invoking ultimate authority...”, I have to disagree. The ultimate authority that we should be invoking is Jesus Christ.

4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.
5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.
6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;
7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.
8 I, the Lord God, make you free, therefore ye are free indeed; and the law also maketh you free.
9 Nevertheless, when the wicked rule the people mourn.
10 Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil.
11 And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God.

But there can be a danger in invoking ultimate authority like the Constitution in support of an argument. If we are not careful, we may lose sight of one of the most important civic virtues: humility.
The incomparable Judge Learned Hand captured this sense of humility by quoting Puritan revolutionary Oliver Cromwell: “I beseech ye in the bowels of Christ, think ye may be mistaken.” Judge Hand then added: “I should like to have that written over the portals of every church, every school, and every court house, and, may I say, of every legislative body in the United States.”32
Judge Hand also wisely noted, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women.”33

To conclude, we will do better following Jesus Christ’s advice in D&C 98 and “do all things whatsoever [He] command [us]”, and any law that is more or less than Constitutional law is evil, and we should “forsake all evil” and “live by every word which proceedeth forth out of the mouth of God”.

[skmo]

Flagg, George has a good point. Being derisive isn't always an effective strategy. I certainly don't always follow that advice, and in fact, I'm terrible at times, but I do recognize that sarcasm isn't a type of communication Jesus would use.

Duh!

Who was being sarcastic? I was merely stating a fact.

I had several mis-connected thoughts there. What's wrong with you guys? Why can't you understand the disjointed and random thoughts in my head that I fail to write down?

Flagg was being derisive about BYU, much more so than I would, which is his right. However, my point was that constant negative attacks aren't in line with the way that The Savior would teach, and I used sarcasm as an example of a less effective way of communicating. It's one of my weaknesses.

[Col. Flagg]

Oh I love irony
jumping on flag for (not actually) jumping on Natasha.
classic

I'm used to it.

[JohnnyL]

My assessment based on this one speech is that Judge Griffith is an apostate and a socialist/communist/fascist.

Seeking Understanding in History and in Law

Here he lays the foundation for the argument that the Constitution is out of date and not relevant to our day.

But here’s some bad news: it’s hard work to understand the Constitution. At least it’s hard work if you try to understand what it meant to those who wrote and ratified its provisions. In my view, that is the understanding we must seek. Many of the provisions in the Constitution were agreed to by citizens who lived in the eighteenth century—a world in which the language, customs, understandings, and problems were, in many ways, different from ours. Understanding their language can be hard work: What is a “letter of marque and reprisal” anyway? Or how about a “bill of attainder”? More difficult still is understanding the problems they were seeking to address. It’s been a while since we’ve labored under a monarchy or were compelled by law to give financial support to an established church. Do you really think of a standing military as a threat to your liberty? And what of the argument of the day in the 1780s that the new United States should mimic the unified island nation of England and Scotland rather than the federated cantons of Switzerland? According to Professor Akhil Amar of Yale Law School, this particular view of things “informed much of the . . . Constitution’s overall structure and many of its specific words.”2 But what if you are not up to speed on the “general geostrategic vision”3 of Americans in the late eighteenth century?

Here he lays the foundation that the Constitution should be changed. He plants the seed that the founding fathers were acting out of selfishness and not inspiration. This we know to be false since Jesus Christ has endorsed our Constitution.

77 According to the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles;
...
80 And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.

Do you get the sense that understanding the Constitution may involve more than casual reading?
Of course, there is an easy way out. Rather than wrestle with what the text of the Constitution meant to those who ratified its provisions, one can take the view that the Constitution was in large measure the work of dead, white, racist men whose views shouldn’t have much, if anything, to do with how we order our society today. Under this view the Constitution is little more than a license to do what is right by our current lights, by our changing standards of decency. Some argue that we needn’t be shackled today by language in the Constitution that seems obscure or by restraints that are inconvenient to modern objectives. Some speak of a “living Constitution” whose meaning changes with our times. Using the phrase “living Constitution” suggests, however, that the Constitution that has actually been ratified is not quite alive, or is, in the words of the renowned constitutional scholar Miracle Max, “mostly dead.”4 Proponents of the living Constitution call upon unelected, life-tenured, and politically unaccountable federal judges—like me—to keep the Constitution up to date. According to this view, federal judges should be the arbiters of the nation’s evolving standards, which we should read into the Constitution. Of course, that is far easier than submitting to the cumbersome and difficult amendment process set forth in the ratified Constitution. But as is often the case with the easy way out, this approach is fundamentally flawed.

At this point he attempts to establish himself as a moral person but that his sense of right and wrong have no place in law. He attempts to disassociate himself from moral responsibility by making the argument that he is only following the law (only following orders). He does that in 4 ways:
1) America votes for the representatives so the laws must be accepted.
2) I must follow the law whither it is moral or not. Here he is renouncing his responsibility to judge the constitutionality of a law and ignoring jury nullification. Just because something is legal doesn’t make it moral or just.
3) Misrepresenting the Constitution by implying that “we the people” trumps “me the individual”.
4) Calling the USA a democracy when it is in fact a constitutional republic. The majority has no authority to vote away the rights of the minority.

This ignores several principles taught us by Jesus Christ through his prophet Joseph Smith.

1) When the wicked rule the people mourn.

9 Nevertheless, when the wicked rule the people mourn.

Elected government doesn’t necessarily mean moral government.

2) The laws can (have) been corrupted.

22 And that they had altered and trampled under their feet the laws of Mosiah, or that which the Lord commanded him to give unto the people; and they saw that their laws had become corrupted, and that they had become a wicked people, insomuch that they were wicked even like unto the Lamanites.

2 For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted.

Lest I be misunderstood, you should know that I have firmly held views about right and wrong, and I call upon them to make decisions in my own life, to teach my family, and to participate actively in my faith and as a citizen of this nation—but not in my work as a judge. Through their elected representatives, the American people have made their decisions about right and wrong and have put them into law. My duty as a judge—a duty I have taken a solemn oath to abide—is to use all the skill I can muster to understand the words in the laws and apply the judgments they codify. When I do, I reinforce the most fundamental principle that undergirds the Constitution: that “we the people”6 decide the rules of our society through our elected representatives. To use my own views of what is right and fair and just would not only violate my oath of office (significant transgression enough!) but would also undermine the very foundation of democratic governance. As Professor Amar observed, “No liberty was more central [to the Framers of the Constitution] than the people’s liberty to govern themselves under rules of their own choice.”7
Judges who replace the judgments expressed in the words of the Constitution with their own views of what is right, what is fair, and what is just take from “we the people” the liberty that is most fundamental: to create government “of the people, by the people, for the people.”8

The Hard Work

Here he testifies to the corruption in the judges. This is best illustrated in the Book of Mormon.

27 And now behold, I say unto you, that the foundation of the destruction of this people is beginning to be laid by the unrighteousness of your lawyers and your judges.

Permit me a personal story that illustrates the difference between the hard way of understanding the Constitution and the easy way out. The day after the Senate confirmed my nomination to the D.C. Circuit, I was the happy recipient of many congratulatory messages in my office in the Administration Building here on campus. One came from a friend who was a former law partner—a person whose experience I value. He had served as a law clerk first to a distinguished judge on the court I was about to join and later to a storied justice on the Supreme Court. My friend asked if he could give me some advice about being a judge. I was teachable and anxious to hear what he had to say.
“The first day of my clerkship on the D.C. Circuit,” he said, “my judge told me, ‘This is how we go about our work: First, we learn the facts of the case. Next, we think long and hard about the fair outcome, the equitable disposition, the just result. Then we go find law to support our conclusion.’ From what I have observed,” my friend continued, “that is how most judges go about their work, and rightly so.”

Here, he again is derelict in his duty to judge the constitutionality of the law. I am in no way for activist judges, but all judges have the responsibility to limit government by ensuring that laws passed do not infringe on the rights protected in the Bill of Rights.

The purpose of the call was congratulatory. It was not an invitation to engage in a debate over the role of a federal judge under the Constitution, and so I simply thanked him for his words. But as I hung up the phone, I took a vow that I would never follow my friend’s advice.
So this is what I tell my law clerks their first day in chambers: We, the people, have elected representatives who make the laws that govern our society. When a federal judge is called upon to resolve a dispute, he must first understand the nature of the controversy (on this count my friend’s advice was sound), but then he must work to understand the meaning of the law that governs the disposition of the case. As Justice Felix Frankfurter put it, the judge is merely the “translator” of the law’s command.9
BYU law professor Brett Scharffs explained it best: “Following the law places a judge in a role that is, in large part, clerical, where he labors largely as a functionary, applying and implementing the law. . . . The judge’s primary task is to find and follow the law.”10 In that search, the judge must parse the words that have been put into law. Their meaning is his command, not his own views of what is right. He follows the law as it was enacted; he does not lead the law to where he believes it should go.

On this point he and I agree.

My point is only this: important texts deserve careful and close reads. When we engage in that type of study, we learn things about the text’s meaning that don’t yield themselves to casual reading and that may be somewhat surprising.

The Second Amendment

In his example of the 2nd Amendment I think he was more successful in illustrating that error of man to attempt to enact laws without the counsel and guidance of God. In this specific example God has given us a great deal of advice.

14 Now the Nephites were taught to defend themselves against their enemies, even to the shedding of blood if it were necessary; yea, and they were also taught never to give an offense, yea, and never to raise the sword except it were against an enemy, except it were to preserve their lives.

46 And they were doing that which they felt was the duty which they owed to their God; for the Lord had said unto them, and also unto their fathers, that: Inasmuch as ye are not guilty of the first offense, neither the second, ye shall not suffer yourselves to be slain by the hands of your enemies.
47 And again, the Lord has said that: Ye shall defend your families even unto bloodshed. Therefore for this cause were the Nephites contending with the Lamanites, to defend themselves, and their families, and their lands, their country, and their rights, and their religion.

17 And they entered into a covenant to fight for the liberty of the Nephites, yea, to protect the land unto the laying down of their lives; yea, even they covenanted that they never would give up their liberty, but they would fight in all cases to protect the Nephites and themselves from bondage.

The Commerce Clause

Now, others may disagree, but the following looks to be his efforts to defend Obamacare, Wickard v. Filburn, United States v. Darby. All of which are indefensible since these examples illustrate Satan’s plan to deny man his agency.

My next example comes from the Supreme Court’s recent decision that upheld most of the provisions of the Patient Protection and Affordable Care Act,20 called “Obamacare” by some. The argument over the act in the courts was not about how best to provide healthcare in America. Rather, the debate was over a much larger question about the role of the federal government in our lives. That debate turns, somewhat surprisingly to many, to a provision in the Constitution known as “the Commerce Clause.” This clause is set forth in Article I of the Constitution, which describes the enumerated powers granted to Congress: “The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”21
Defenders of the act argued that the phrase in the middle of the Clause—conferring on Congress the “Power . . . to regulate Commerce . . . among the several States”—laid the foundation on which Congress rested the most controversial provision of the act: the mandate that each person must purchase insurance or suffer a monetary penalty.
You may not like the idea that a majority of Congress can tell you that you must buy health insurance or pay a penalty. After all, you’re young, healthy, and free. On the other hand, you might think it’s a really good idea to compel everyone to participate in a market so that people who have not been able to afford health insurance will be able to do so. But the hard work of understanding the Constitution requires more than simply asking yourself which policy you favor. And in this instance, as with the Second Amendment, the hard work of understanding the Constitution requires an understanding of some history. Follow me on a brief excursion into our economic past.
Recall that the Constitution was born out of the ashes of political failure. Our young nation first attempted to create some form of a union with the Articles of Confederation. But rather than unifying our thirteen ragtag colonies, the articles exacerbated the different political and economic interests “among the several States.” Chief among the complaints directed at the Articles of Confederation was that they encouraged the states to protect their narrow economic interests, to the detriment of the other states. Thirteen separate political bodies authored tax codes and regulatory regimes, favoring local goods and producers over those from other regions. Virginia and the Carolinas had tobacco. Pennsylvania had wheat. Connecticut and Massachusetts had fish. New York had shipping. And so on. Such a system might enrich a few local producers but it could not create a truly national economy. And without a national economy, America would be relegated to second-tier status, always lagging behind those nations that make it easy to buy and sell across regions and oceans, enlarging their economies and enriching their citizens.
As part of an effort “to form a more perfect Union,” we, the people, gave Congress the power “to regulate Commerce . . . among the several States.” In other words, Congress can regulate goods that are produced in one place and sold across state lines—like wheat grown in Pennsylvania and sold in New York. And the Supreme Court said, in a case called United States v. Darby, that Congress can even regulate the inputs to goods that travel in interstate commerce—like the wage a farmer pays his field hand for harvesting wheat in one state and selling it elsewhere.22
But in 1942, in a case called Wickard v. Filburn, the Supreme Court articulated an even broader scope of the Commerce Clause.23 Congress, the court said, has the power to regulate activity that has a “substantial effect”24 on interstate commerce. In Wickard Congress had enacted legislation that imposed a quota on the amount of wheat that could be grown. Administering this law, the secretary of agriculture forbade a farmer in Ohio named Roscoe Filburn from growing wheat on more than eleven acres of his farm. Filburn disregarded that directive and grew wheat on twenty-three acres. The secretary ordered Filburn to destroy the excess crops and pay a fine. Filburn challenged the secretary of agriculture in court.
Filburn grew wheat only for use as chicken feed on his own farm. He did not sell his wheat to anyone, let alone to someone across state lines. Filburn argued in court that Congress had no authority to limit the amount of wheat he grew because none of it was entering interstate commerce and Congress could not regulate his conduct that was not in interstate commerce. To the surprise and consternation of some, a unanimous Supreme Court decided that the wheat quota passed by Congress and enforced by the secretary of agriculture applied to Filburn because his decision to grow and consume his own wheat substantially affected the price of wheat produced for interstate commerce. As the court saw it, if Wilburn grew his own wheat for chicken feed on his farm, he wouldn’t be going to the market to meet that need. Not buying that wheat on a market in which wheat was traded nationally would, in the view of the Supreme Court, substantially affect interstate commerce. Because Congress has the power to direct activities that substantially affect interstate commerce, so the argument goes, Congress had the power to tell Filburn he could not grow more wheat than the quota, even though his wheat would never enter interstate commerce.
How far does this view of Congress’s power extend? Supporters of the Affordable Care Act argued that people who choose not to buy health insurance—like Filburn not buying wheat he could grow himself—drive up the price of insurance for those who do purchase it. Their action—or inaction—substantially affects the national market for health insurance, and the Commerce Clause gives Congress the authority to regulate their inaction.
But that cannot be correct, say opponents of the act. The ability “to regulate interstate commerce”25 cannot be extended so far as to encompass the ability to regulate inactivity. Stretching the Commerce Clause that far would mean that Congress could regulate anything that has even the most tenuous influence on interstate markets. There is a difference, they argue, between regulating someone who is participating in a market and forcing someone to enter a market.

Here he is explaining that Obamacare is in fact an example of a group of people voting away the rights of another group of people. Authority which neither the individual or the collective possesses. Obamacare, Wickard v. Filburn, and United States v. Darby are in fact socialism/communism and the opposite of agency. In essence government is forcing some people to spend money to profit and benefit someone else. It is taxation, not through government, but through corporations. It is bondage and tribute.

These two competing views of the Affordable Care Act reflect a debate as old as our nation. Proponents of a broad view of the Commerce Clause generally trust Congress, as representatives of we, the people, to regulate anything it determines has an aggregate effect on interstate commerce. Skeptics of congressional power, on the other hand, distrust Congress to police the limits of its own power. They see a fox guarding the chicken coop.

The Responsibility of Citizenship

Once again, here, he and I agree.

This idea has ancient and venerable roots. Aristotle understood citizenship to be more than simply reaping the benefits of others’ participation in the civic and political life of the community. The work of citizenship, he taught, is hard work that calls upon us to use our best thinking, our most careful study, and our most rigorous analysis.30

In the following he seems to promote the idea that there is not right and wrong. As he said, “But there can be a danger in invoking ultimate authority...”, I have to disagree. The ultimate authority that we should be invoking is Jesus Christ.

4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.
5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.
6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;
7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.
8 I, the Lord God, make you free, therefore ye are free indeed; and the law also maketh you free.
9 Nevertheless, when the wicked rule the people mourn.
10 Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil.
11 And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God.

But there can be a danger in invoking ultimate authority like the Constitution in support of an argument. If we are not careful, we may lose sight of one of the most important civic virtues: humility.
The incomparable Judge Learned Hand captured this sense of humility by quoting Puritan revolutionary Oliver Cromwell: “I beseech ye in the bowels of Christ, think ye may be mistaken.” Judge Hand then added: “I should like to have that written over the portals of every church, every school, and every court house, and, may I say, of every legislative body in the United States.”32
Judge Hand also wisely noted, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women.”33

To conclude, we will do better following Jesus Christ’s advice in D&C 98 and “do all things whatsoever [He] command [us]”, and any law that is more or less than Constitutional law is evil, and we should “forsake all evil” and “live by every word which proceedeth forth out of the mouth of God”.

:ymapplause:

[buffalo_girl]

I will reread his 'speech' once more before arriving at an opinion. At the moment, however, I'm a bit put off by his repeated references to Yale and Oxford professors, as well as to a Rhode Scholar of his BYU acquaintance. Strikes me as 'name dropping' elitism. Silly....

I found this quote unsettling:

Judge Hand also wisely noted, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women.”33

33. Learned Hand, “The Spirit of Liberty” (speech), New York, 21 May 1944; see The Yale Book of Quotations, 336; quoted in Antonin Scalia, “The Millennium That Was: How Democracy Swept the World,” Wall Street Journal, 7 September 1999, A24.

Really?!!!

His entire speech seems an attempt to portray the Constitution for the United States as a clumsily written archaic set of guidelines in need of constant interpretation - first of all - by Congress which creates 'laws' according to its spin, and then by Judges when there are any serious questions or challenges. (Like Romney's lawyers being consulted on a 'constitutional' issue.)

I'm not in any way convinced that the Separation of Power delineated in that document is complex. I DO understand that there are some 'holes' where evil men have found a toehold from which to expand their machinations to destroy individual rights and liberty.

I would have been much more comfortable with a 'good' LDS federal judge talking about the importance of preserving the right of an individual to grow 23 acres of wheat in order to feed his livestock than using that case as a justification for the Supreme Court Ruling on why we all MUST buy health insurance in order to preserve the integrity of what he calls 'interstate commerce'.

Given that argument, NOT ONE of us actually owns our deeded property or the mortal body with which we have been endowed.

Worrisome! I can see a whole lot of wooden headed BYU students getting on board that ghost train to pursue the goal of becoming perfect drones for the STATE.

[gclayjr]

I suuppose that could get into a point by point discussion of all of the things that seem to taken out of context here, but will just focus on a couple.

1) You criticise him for properly definng the constitutinal role of a judge. You, who are among the first to get upset about justices finding ways to bend the law to get the results they believe to be righteous such as the right to abortion, are just as quick to jump on this judge, for taking the position that he needs to do the difficult work in understanding the original intent that our founding fathers meant and applying the original meaning of the Constitution to make his decisions. You can't have it both ways. I guess you are so sure that your better than everybody else, that it is ok for you to decide what is true then bend the law and constitution to fit it, but the other side is wrong to be equally sure they are right and bend the law and constitution to what they believe to be true.

2) While maybe being an Oxford professor, doesn't guarantee that a man is wise, it also doesn't mean that he is a fool either. I think it Is indeed wise counsel to not be so sure of yourself that you make no effort to understand other people's minds. It is those who are so sure they are right and others are wrong that take away our liberty by imposing their view of truth upon all of us.

The Lord has often counseled us to be humble, it amazes me that the very humility that Judge Grifith expresses is the very thing that he is crucified for here.

I'm SURE there is no shorage of humility in the character of those who are so vicious in their attacks on the good Judge.

Regards,

George Clay

[buffalo_girl]

I was directed to this talk by a friend....given quite recently at BYU. I thought it was a very thought provoking read.

Our thoughts have been provoked.

[buffalo_girl]

http://mailstar.net/rhodes-will.html" onclick="window.open(this.href);return false;

The idea gleaming and dancing before one's eyes like a will-of-the wisp at last frames itself into a plan. Why should we not form a secret society with but one object the furtherance of the British Empire and the bringing of the whole uncivilised world under British rule for the recovery of the United States for the making the Anglo-Saxon race but one Empire.
Cecil Rhodes, Confessions of Faith, 1877

http://www.pfrpo.ca/articles.php?command=print&ID=16290" onclick="window.open(this.href);return false;

Professor Quigley continued:
"In the middle 1890's Rhodes had a personal income of at least a million pounds sterling a year (then about five million dollars) which was spent so freely for his mysterious purposes that he was usually overdrawn on his account. These purposes centered on his desire to federate the English-speaking people and to bring all the habitable portions of the world under their control. For this purpose Rhodes left part of his great fortune to found the Rhodes Scholarships at Oxford in order to spread the English ruling class tradition throughout the English-speaking world as Ruskin had wanted."

Initially the inner core of the secret society was called "The Circle of Initiates," the second tier was "The Association of Helpers," from 1901 to 1910 the third tier was called "Milner's Kindergarden," and from 1910 to 1920 it was called "The Round Table" or "the Group." [4] The following year (1921) the cabal established the Council on Foreign Relations in the United States and branches of the Royal Institute of International Affairs (RIIA) in the Commonwealth nations. [5] Fifty-two years later (1973) the covert movement established the Trilateral Commission. What did they accomplish? The secret society incited the Boer War, they precipitated and prolonged World War I, they orchestrated World War II, they transferred Eastern Europe and China to the communists, they got the U.S. and Great Britain to fight a no-win-war in Korea and a no-win war in Vietnam, they destroyed the infrastructure of Afghanistan and Iraq, and the modern-day extension of the covert movement is trying to precipitate a war with Iran and the Muslim world. [6] Why do they want to precipitate a war? They believe the chaos generated by the financial crisis and the suffering caused by the coming war will force nations to relinquish their sovereignty. Henry Kissinger said, "The alternative to a new international order is chaos." [7] That has been the quest of the secret societies down through the ages. It was the intent of Cecil Rhodes' secret society, and it is the goal of the Trilateral Commission, the CFR, and the Bilderbergs today. [8]

http://www.pennsylvaniacrier.com/filemg ... rships.pdf" onclick="window.open(this.href);return false;

[InfoWarrior82]

So, looks like Col. Flagg was correct in his guess that this talk on the constitution at BYU was nothing more than an underhanded attempt at bashing it, based on their past record.

Score another for the Col. :ymapplause:

[AGStacker]

George, the unfortunate thing is fools will always, ALWAYS believe the Oxford guy over the non educated guy even if the non educated guy is right 100% of the time.

Perfect example is people like Bernanke. If you believe he isn't a Gadianton, surely you believe he is an absolute fool. If you believe he is a Gadianton, surely you know he is doing what he is doing to destroy the US dollar.

[natasha]

A talk on the Constitution at BYU? :-\ What would they know about the Constitution when all they do is invite modern day Gadiantons like Cheney, Brzezinski, Patraeus and Rice to speak to their graduating student body with no thought about ever inviting true Patriots like Ron Paul or Chuck Baldwin? Sorry Nat... had to take the jab because it is deserved.

And I was absolutely positive that you would be the first to respond. I posted because in the past here on the forum either you or someone else stated that BYU had little interest in the Constitution. I never responded...but I will tell you now that during the past 10 years that I have lived here in Utah, I have seen several symposiums, etc., offered on a weekend regarding the Constitution. You never "disapoint" me Col.

[natasha]

My assessment based on this one speech is that Judge Griffith is an apostate and a socialist/communist/fascist.

Seeking Understanding in History and in Law

Here he lays the foundation for the argument that the Constitution is out of date and not relevant to our day.

But here’s some bad news: it’s hard work to understand the Constitution. At least it’s hard work if you try to understand what it meant to those who wrote and ratified its provisions. In my view, that is the understanding we must seek. Many of the provisions in the Constitution were agreed to by citizens who lived in the eighteenth century—a world in which the language, customs, understandings, and problems were, in many ways, different from ours. Understanding their language can be hard work: What is a “letter of marque and reprisal” anyway? Or how about a “bill of attainder”? More difficult still is understanding the problems they were seeking to address. It’s been a while since we’ve labored under a monarchy or were compelled by law to give financial support to an established church. Do you really think of a standing military as a threat to your liberty? And what of the argument of the day in the 1780s that the new United States should mimic the unified island nation of England and Scotland rather than the federated cantons of Switzerland? According to Professor Akhil Amar of Yale Law School, this particular view of things “informed much of the . . . Constitution’s overall structure and many of its specific words.”2 But what if you are not up to speed on the “general geostrategic vision”3 of Americans in the late eighteenth century?

Here he lays the foundation that the Constitution should be changed. He plants the seed that the founding fathers were acting out of selfishness and not inspiration. This we know to be false since Jesus Christ has endorsed our Constitution.

77 According to the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles;
...
80 And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.

Do you get the sense that understanding the Constitution may involve more than casual reading?
Of course, there is an easy way out. Rather than wrestle with what the text of the Constitution meant to those who ratified its provisions, one can take the view that the Constitution was in large measure the work of dead, white, racist men whose views shouldn’t have much, if anything, to do with how we order our society today. Under this view the Constitution is little more than a license to do what is right by our current lights, by our changing standards of decency. Some argue that we needn’t be shackled today by language in the Constitution that seems obscure or by restraints that are inconvenient to modern objectives. Some speak of a “living Constitution” whose meaning changes with our times. Using the phrase “living Constitution” suggests, however, that the Constitution that has actually been ratified is not quite alive, or is, in the words of the renowned constitutional scholar Miracle Max, “mostly dead.”4 Proponents of the living Constitution call upon unelected, life-tenured, and politically unaccountable federal judges—like me—to keep the Constitution up to date. According to this view, federal judges should be the arbiters of the nation’s evolving standards, which we should read into the Constitution. Of course, that is far easier than submitting to the cumbersome and difficult amendment process set forth in the ratified Constitution. But as is often the case with the easy way out, this approach is fundamentally flawed.

At this point he attempts to establish himself as a moral person but that his sense of right and wrong have no place in law. He attempts to disassociate himself from moral responsibility by making the argument that he is only following the law (only following orders). He does that in 4 ways:
1) America votes for the representatives so the laws must be accepted.
2) I must follow the law whither it is moral or not. Here he is renouncing his responsibility to judge the constitutionality of a law and ignoring jury nullification. Just because something is legal doesn’t make it moral or just.
3) Misrepresenting the Constitution by implying that “we the people” trumps “me the individual”.
4) Calling the USA a democracy when it is in fact a constitutional republic. The majority has no authority to vote away the rights of the minority.

This ignores several principles taught us by Jesus Christ through his prophet Joseph Smith.

1) When the wicked rule the people mourn.

9 Nevertheless, when the wicked rule the people mourn.

Elected government doesn’t necessarily mean moral government.

2) The laws can (have) been corrupted.

22 And that they had altered and trampled under their feet the laws of Mosiah, or that which the Lord commanded him to give unto the people; and they saw that their laws had become corrupted, and that they had become a wicked people, insomuch that they were wicked even like unto the Lamanites.

2 For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted.

Lest I be misunderstood, you should know that I have firmly held views about right and wrong, and I call upon them to make decisions in my own life, to teach my family, and to participate actively in my faith and as a citizen of this nation—but not in my work as a judge. Through their elected representatives, the American people have made their decisions about right and wrong and have put them into law. My duty as a judge—a duty I have taken a solemn oath to abide—is to use all the skill I can muster to understand the words in the laws and apply the judgments they codify. When I do, I reinforce the most fundamental principle that undergirds the Constitution: that “we the people”6 decide the rules of our society through our elected representatives. To use my own views of what is right and fair and just would not only violate my oath of office (significant transgression enough!) but would also undermine the very foundation of democratic governance. As Professor Amar observed, “No liberty was more central [to the Framers of the Constitution] than the people’s liberty to govern themselves under rules of their own choice.”7
Judges who replace the judgments expressed in the words of the Constitution with their own views of what is right, what is fair, and what is just take from “we the people” the liberty that is most fundamental: to create government “of the people, by the people, for the people.”8

The Hard Work

Here he testifies to the corruption in the judges. This is best illustrated in the Book of Mormon.

27 And now behold, I say unto you, that the foundation of the destruction of this people is beginning to be laid by the unrighteousness of your lawyers and your judges.

Permit me a personal story that illustrates the difference between the hard way of understanding the Constitution and the easy way out. The day after the Senate confirmed my nomination to the D.C. Circuit, I was the happy recipient of many congratulatory messages in my office in the Administration Building here on campus. One came from a friend who was a former law partner—a person whose experience I value. He had served as a law clerk first to a distinguished judge on the court I was about to join and later to a storied justice on the Supreme Court. My friend asked if he could give me some advice about being a judge. I was teachable and anxious to hear what he had to say.
“The first day of my clerkship on the D.C. Circuit,” he said, “my judge told me, ‘This is how we go about our work: First, we learn the facts of the case. Next, we think long and hard about the fair outcome, the equitable disposition, the just result. Then we go find law to support our conclusion.’ From what I have observed,” my friend continued, “that is how most judges go about their work, and rightly so.”

Here, he again is derelict in his duty to judge the constitutionality of the law. I am in no way for activist judges, but all judges have the responsibility to limit government by ensuring that laws passed do not infringe on the rights protected in the Bill of Rights.

The purpose of the call was congratulatory. It was not an invitation to engage in a debate over the role of a federal judge under the Constitution, and so I simply thanked him for his words. But as I hung up the phone, I took a vow that I would never follow my friend’s advice.
So this is what I tell my law clerks their first day in chambers: We, the people, have elected representatives who make the laws that govern our society. When a federal judge is called upon to resolve a dispute, he must first understand the nature of the controversy (on this count my friend’s advice was sound), but then he must work to understand the meaning of the law that governs the disposition of the case. As Justice Felix Frankfurter put it, the judge is merely the “translator” of the law’s command.9
BYU law professor Brett Scharffs explained it best: “Following the law places a judge in a role that is, in large part, clerical, where he labors largely as a functionary, applying and implementing the law. . . . The judge’s primary task is to find and follow the law.”10 In that search, the judge must parse the words that have been put into law. Their meaning is his command, not his own views of what is right. He follows the law as it was enacted; he does not lead the law to where he believes it should go.

On this point he and I agree.

My point is only this: important texts deserve careful and close reads. When we engage in that type of study, we learn things about the text’s meaning that don’t yield themselves to casual reading and that may be somewhat surprising.

The Second Amendment

In his example of the 2nd Amendment I think he was more successful in illustrating that error of man to attempt to enact laws without the counsel and guidance of God. In this specific example God has given us a great deal of advice.

14 Now the Nephites were taught to defend themselves against their enemies, even to the shedding of blood if it were necessary; yea, and they were also taught never to give an offense, yea, and never to raise the sword except it were against an enemy, except it were to preserve their lives.

46 And they were doing that which they felt was the duty which they owed to their God; for the Lord had said unto them, and also unto their fathers, that: Inasmuch as ye are not guilty of the first offense, neither the second, ye shall not suffer yourselves to be slain by the hands of your enemies.
47 And again, the Lord has said that: Ye shall defend your families even unto bloodshed. Therefore for this cause were the Nephites contending with the Lamanites, to defend themselves, and their families, and their lands, their country, and their rights, and their religion.

17 And they entered into a covenant to fight for the liberty of the Nephites, yea, to protect the land unto the laying down of their lives; yea, even they covenanted that they never would give up their liberty, but they would fight in all cases to protect the Nephites and themselves from bondage.

The Commerce Clause

Now, others may disagree, but the following looks to be his efforts to defend Obamacare, Wickard v. Filburn, United States v. Darby. All of which are indefensible since these examples illustrate Satan’s plan to deny man his agency.

My next example comes from the Supreme Court’s recent decision that upheld most of the provisions of the Patient Protection and Affordable Care Act,20 called “Obamacare” by some. The argument over the act in the courts was not about how best to provide healthcare in America. Rather, the debate was over a much larger question about the role of the federal government in our lives. That debate turns, somewhat surprisingly to many, to a provision in the Constitution known as “the Commerce Clause.” This clause is set forth in Article I of the Constitution, which describes the enumerated powers granted to Congress: “The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”21
Defenders of the act argued that the phrase in the middle of the Clause—conferring on Congress the “Power . . . to regulate Commerce . . . among the several States”—laid the foundation on which Congress rested the most controversial provision of the act: the mandate that each person must purchase insurance or suffer a monetary penalty.
You may not like the idea that a majority of Congress can tell you that you must buy health insurance or pay a penalty. After all, you’re young, healthy, and free. On the other hand, you might think it’s a really good idea to compel everyone to participate in a market so that people who have not been able to afford health insurance will be able to do so. But the hard work of understanding the Constitution requires more than simply asking yourself which policy you favor. And in this instance, as with the Second Amendment, the hard work of understanding the Constitution requires an understanding of some history. Follow me on a brief excursion into our economic past.
Recall that the Constitution was born out of the ashes of political failure. Our young nation first attempted to create some form of a union with the Articles of Confederation. But rather than unifying our thirteen ragtag colonies, the articles exacerbated the different political and economic interests “among the several States.” Chief among the complaints directed at the Articles of Confederation was that they encouraged the states to protect their narrow economic interests, to the detriment of the other states. Thirteen separate political bodies authored tax codes and regulatory regimes, favoring local goods and producers over those from other regions. Virginia and the Carolinas had tobacco. Pennsylvania had wheat. Connecticut and Massachusetts had fish. New York had shipping. And so on. Such a system might enrich a few local producers but it could not create a truly national economy. And without a national economy, America would be relegated to second-tier status, always lagging behind those nations that make it easy to buy and sell across regions and oceans, enlarging their economies and enriching their citizens.
As part of an effort “to form a more perfect Union,” we, the people, gave Congress the power “to regulate Commerce . . . among the several States.” In other words, Congress can regulate goods that are produced in one place and sold across state lines—like wheat grown in Pennsylvania and sold in New York. And the Supreme Court said, in a case called United States v. Darby, that Congress can even regulate the inputs to goods that travel in interstate commerce—like the wage a farmer pays his field hand for harvesting wheat in one state and selling it elsewhere.22
But in 1942, in a case called Wickard v. Filburn, the Supreme Court articulated an even broader scope of the Commerce Clause.23 Congress, the court said, has the power to regulate activity that has a “substantial effect”24 on interstate commerce. In Wickard Congress had enacted legislation that imposed a quota on the amount of wheat that could be grown. Administering this law, the secretary of agriculture forbade a farmer in Ohio named Roscoe Filburn from growing wheat on more than eleven acres of his farm. Filburn disregarded that directive and grew wheat on twenty-three acres. The secretary ordered Filburn to destroy the excess crops and pay a fine. Filburn challenged the secretary of agriculture in court.
Filburn grew wheat only for use as chicken feed on his own farm. He did not sell his wheat to anyone, let alone to someone across state lines. Filburn argued in court that Congress had no authority to limit the amount of wheat he grew because none of it was entering interstate commerce and Congress could not regulate his conduct that was not in interstate commerce. To the surprise and consternation of some, a unanimous Supreme Court decided that the wheat quota passed by Congress and enforced by the secretary of agriculture applied to Filburn because his decision to grow and consume his own wheat substantially affected the price of wheat produced for interstate commerce. As the court saw it, if Wilburn grew his own wheat for chicken feed on his farm, he wouldn’t be going to the market to meet that need. Not buying that wheat on a market in which wheat was traded nationally would, in the view of the Supreme Court, substantially affect interstate commerce. Because Congress has the power to direct activities that substantially affect interstate commerce, so the argument goes, Congress had the power to tell Filburn he could not grow more wheat than the quota, even though his wheat would never enter interstate commerce.
How far does this view of Congress’s power extend? Supporters of the Affordable Care Act argued that people who choose not to buy health insurance—like Filburn not buying wheat he could grow himself—drive up the price of insurance for those who do purchase it. Their action—or inaction—substantially affects the national market for health insurance, and the Commerce Clause gives Congress the authority to regulate their inaction.
But that cannot be correct, say opponents of the act. The ability “to regulate interstate commerce”25 cannot be extended so far as to encompass the ability to regulate inactivity. Stretching the Commerce Clause that far would mean that Congress could regulate anything that has even the most tenuous influence on interstate markets. There is a difference, they argue, between regulating someone who is participating in a market and forcing someone to enter a market.

Here he is explaining that Obamacare is in fact an example of a group of people voting away the rights of another group of people. Authority which neither the individual or the collective possesses. Obamacare, Wickard v. Filburn, and United States v. Darby are in fact socialism/communism and the opposite of agency. In essence government is forcing some people to spend money to profit and benefit someone else. It is taxation, not through government, but through corporations. It is bondage and tribute.

These two competing views of the Affordable Care Act reflect a debate as old as our nation. Proponents of a broad view of the Commerce Clause generally trust Congress, as representatives of we, the people, to regulate anything it determines has an aggregate effect on interstate commerce. Skeptics of congressional power, on the other hand, distrust Congress to police the limits of its own power. They see a fox guarding the chicken coop.

The Responsibility of Citizenship

Once again, here, he and I agree.

This idea has ancient and venerable roots. Aristotle understood citizenship to be more than simply reaping the benefits of others’ participation in the civic and political life of the community. The work of citizenship, he taught, is hard work that calls upon us to use our best thinking, our most careful study, and our most rigorous analysis.30

In the following he seems to promote the idea that there is not right and wrong. As he said, “But there can be a danger in invoking ultimate authority...”, I have to disagree. The ultimate authority that we should be invoking is Jesus Christ.

4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.
5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.
6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;
7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.
8 I, the Lord God, make you free, therefore ye are free indeed; and the law also maketh you free.
9 Nevertheless, when the wicked rule the people mourn.
10 Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil.
11 And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God.

But there can be a danger in invoking ultimate authority like the Constitution in support of an argument. If we are not careful, we may lose sight of one of the most important civic virtues: humility.
The incomparable Judge Learned Hand captured this sense of humility by quoting Puritan revolutionary Oliver Cromwell: “I beseech ye in the bowels of Christ, think ye may be mistaken.” Judge Hand then added: “I should like to have that written over the portals of every church, every school, and every court house, and, may I say, of every legislative body in the United States.”32
Judge Hand also wisely noted, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women.”33

To conclude, we will do better following Jesus Christ’s advice in D&C 98 and “do all things whatsoever [He] command [us]”, and any law that is more or less than Constitutional law is evil, and we should “forsake all evil” and “live by every word which proceedeth forth out of the mouth of God”.

I love it when people show their hand!...calling a fine man an "apostate and a socialist/communist/fascist". Truly this tells me more about the responder. Why can't people disagree without all the name calling and seemingly hatredness?

[buffalo_girl]

Did anyone else miss a heartbeat by Brother Griffith's opening statement regarding 'the mandate'?

As you may know, by gathering today we act in obedience to a congressional mandate that every educational institution receiving federal funds must, sometime this week, celebrate the approval of the federal Constitution by the Philadelphia convention on September 17, 1787.1 This law was sponsored by the late Senator Robert Byrd of West Virginia, who was an enthusiastic student of the Constitution. Not surprising, the law provided no funding for the celebration. In other words, it is yet another unfunded mandate.

[natasha]

So, looks like Col. Flagg was correct in his guess that this talk on the constitution at BYU was nothing more than an underhanded attempt at bashing it, based on their past record.

Score another for the Col. :ymapplause:

No, not quite. As I posted a few posts up, I had posted this to counter an accusation made by someone a year or so ago on this forum that BYU cared little about the Constitution, etc....when in fact, I have seen symposiums offered several times in the last 10 years that had to do with the Constitution. And by the way, who's keeping score?...this is the attitude of so many here.

[buffalo_girl]

So...does BYU accept 'federal funds'?

[natasha]

So...does BYU accept 'federal funds'?

They probably can't run an ROTC program without funds. They also receive federal grants for various endeavors.

[AGStacker]

So, looks like Col. Flagg was correct in his guess that this talk on the constitution at BYU was nothing more than an underhanded attempt at bashing it, based on their past record.

Score another for the Col. :ymapplause:

No, not quite. As I posted a few posts up, I had posted this to counter an accusation made by someone a year or so ago on this forum that BYU cared little about the Constitution, etc....when in fact, I have seen symposiums offered several times in the last 10 years that had to do with the Constitution. And by the way, who's keeping score?...this is the attitude of so many here.

If BYU cared, really cared about the Constitution they wouldn't have done what they did to Brother Jones. If they have since "seen the light" they should openly ask Jones' forgiveness and ask him to return to his prior teaching profession and they would stop having war criminals/Gadiantons speak on their campus.

[natasha]

For those who are interested in reading: http://speeches.byu.edu/index.php?act=viewitem&id=2073" onclick="window.open(this.href);return false;

Also, there is an article in the 1975 Ensign written by Pres. Faust "Why a University in the Kingdom"