"Obviously, we have a severe lack of judgment and a horrible level of insensitivity," Marguerite Vanden Wyngaard, the superintendent of Albany schools, observed, "That's not the assignment that any school district, and certainly not mine, is going to tolerate." Dr. Wyngaard later met with Jewish leaders in Albany and was reported to have offered a public apology on Friday. She opined that the assignment was apparently an attempt to link the English class with a history lesson on the Holocaust. Although Dr. Wyngaard insisted that,"No one here believes that malice was the intent," the teacher has been suspended and faces disciplinary action that the superintendent said could include termination. 

     Rabbi David M. Eligberg of Temple Israel, a Conservative synagogue in Albany, told McKinley that the lesson was "incendiary, inappropriate and academically unsound." "The assignment is flawed in its essence," Rabbi Eligberg was also quoted as saying. "It asks students to take the product for a propaganda machine and treat it as legitimate fodder for a rational argument. And that's just wrong." Rabbi Eligberg even criticized a part of the assignment which instructed students to use one of three classic Greek ideals -ethos, pathos or logos - to support their anti-Semitic argument. ("Choose which argument style will be most effective in making your point. Please remember that your life here in Nazi Germany in the '30s may depend on it!" the assignment read.)

    Rabbi Donald P. Cashman of the B'nai Sholom Reform Congregation, whom McKinley's article identified as the father of three Albany High School graduates, was described as  more forgiving. "Hypothetical situations are often effective teaching tools," he stated, and debating positions one may not believe in can also be valuable. "We know it's important for kids to get out of their comfort zones," Rabbi Cashman remarked and added that the assignment seemed to correspond with Holocaust Remembrance Day, known as Yom Hashoah, which was commemorated on April 7th and 8th of last week.

    Nick Brino, a 10th grade student, heard about the assignment secondhand from a classmate. "I thought it was wrong," he said, "But she was flipping out, saying if anyone was going to do it, she wasn't going to be their friend."

    A ninth-grader, Jyasi Nagel, stated that he thought the teacher was not anti-Semitic, but was just trying to teach different points of view. His father, Moses Nagel, did not advocate a harsh punishment for the teacher, but still said that he thought  another topic might have   provided a more suitable lesson. "It just seems like there's a million other examples to use rather than going there," he noted.

      In the United Kingdom, for generations, universities and secondary schools have sponsored and endowed debating societies. Perhaps Oxford University's is the most famous. A primary goal of these debating societies has always been to train young men - and now women - to stand for public office and to prepare them to become Members of Parliament. As a consequence, the ability to think quickly on one's feet, to rapidly dispose of hostile questions from the audience, and to argue from different perspectives (even if not believed) and to debate seemingly inane or vile topics have become the standard repertoire of successful debaters.
 
    In the U.S., since the late 19th century, colleges and universities - and increasingly now many high schools - have also sponsored debating clubs and societies, albeit for more prosaic purposes. Unlike their British counterparts who explicitly acknowledge a nexus between reasoned discussion and the kind of informed civic discourse that is the lifeblood of democracy, many American debaters would also suggest that the art of debating is good preparation for entering into the rough and tumble of the world of commerce. In the U.S., too, while university debating topics are more formal, and the debate format more restrained (audience participation is prohibited), it is not unusual in special, non-competition tournaments for the debate judges to ring a bell in the middle of an argument and require the debater, without prior notice, to immediately begin to argue against the very proposition that the debater had only moments before been advancing.

    The purpose of debating is to develop the intellectual agility that will enable future citizens and public office holders to quickly understand opposing arguments and the evidence upon which they rest in order to be able dissect the strengths and weaknesses of each asserted proposition.

    Most serious debaters, as part of their formal training, have also studied Aristotle's Rhetoric and can immediately recognize and challenge faulty logic - non-sequiturs ( it does not follow), non causa pro causa ( noncause for the cause), reductio ad absurdum,  post hoc ergo propter hoc, (after this, because of this) and the classic fallacies - argumentum ad populum, ad baculum, ad verecundiam, ad hominem, etc.        
 
    The Times' article raises profoundly disturbing issues, especially in view of the fact that so few young American adolescents will ever be exposed to a formal course in logic or join a debating team. It also raises serious questions about academic freedom and the extent to which the First Amendment's guarantee of fee speech protects the rights of teachers, the extent to which school districts are truly committed to development of critical thinking skills among pupils, and the extent to which teachers should be invested with autonomy and wide latitude - as licensed and qualified professionals and consistent with the curriculum  - to raise controversial issues and to utilize controversial strategies without censorship by non-teachers, whether superintendents, school administrators, clergy or parents.

    The suspension of this tenth grade English teacher is inimical to the open exchange of ideas between teachers and learners in a democratic society. If disturbing, unseemly, and unsettling questions are the Rubicon beyond which teachers in U.S. school districts may not cross, the moral development model of inquiry, for example, that was created by Lawrence Kohlberg will also become another outlier: Kohlberg's work, based upon Piaget's developmental psychology and Kant's ethical precepts, could never again never be used in a classroom because debate and the open discussion of each moral dilemma presented are essential and indispensable parts of the process by which the quality of empathy and a broader understanding of one's obligations as a moral agent are cultivated.

     How can young people learn to apply the lessons of logic and develop the ability to distinguish between propaganda and good evidence, truth and falsity, if they have never been required to try to defend the indefensible?

    Isn't this teacher being punished because, in our politically correct culture, we would rather not think about unsettling ideas, but simply declare them to be out of bounds?
   
    Didn't the Germans in the 1930s think that they, too, were ordinary people?

    Weren't the Western democracies, including the United States, morally complicit when they refused to allow safe-havens for Jewish emigres who were attempting to escape the Nazi genocide?

    Didn't Pope Pius XII remain silent and decline to excommunicate Adolph Hitler, despite his crimes against humanity and violations of fundamental Catholic teaching?
       
    Didn't most Southern whites before the Civil War believe that they, too, not unlike the Germans of the 1930s, were virtuous, misunderstood and support slavery as that "peculiar institution?"

    Didn't most Southern whites, with the acquiescence and tacit acceptance of the rest of the American population, support Jim Crow and the persistent violence and degradation of Southern blacks until the 1960s?

      Although not of the same magnitude of evil as the pogroms against European Jews, didn't most "decent" white Southerners abandon the Democratic Party because the party of their historic allegiance finally divorced itself from Jim Crow and became the party of civil rights?

    Weren't the appeals to the "silent majority" and the "Southern strategy" of Nixon and Reagan, the latter's criticisms of "welfare queens," the elder Bush's Willie Horton ads, and the GOP's continued blatant appeals to the resentments and grievances of hard-scrabble working-class white citizens akin to the Nazi's strategy of blaming the Jews for most of that country's ills?

    Isn't the ability to analogize and to draw parallels and deduce inferences an essential part of the learning process?
   
    Doesn't the very survival of democracy depend upon the ability of citizens to make informed decisions based upon actual evidence and the reasoned analysis of that evidence, no matter how disconcerting it may be to our own cherished worldviews?

      In this lingering Great Recession, high unemployment in the private sector and the loss of nearly one million jobs in the public sector have enfeebled consumer demand and significantly stalled a robust economic recovery. It is a basic axiom of modern macro-economics that, when  consumer demand has collapsed because of high unemployment (and tax revenues have declined at the federal, state and  local levels) the federal government - through fiscal policy (pump-priming) - then becomes the only remaining, viable agent that can stimulate the economy since the wealthy  have already hunkered down to await better days.

     Anyone who doubts that validity of this basic proposition as originally put forth by John Maynard Keynes in his General Theory  - and which has been reconfirmed by three generations of mainstream orthodox economists including John Kenneth Galbraith, Gardner Ackley, Paul Samuelson, Paul Krugman and Joseph Stiglitz - need only consider the present examples of Spain, Portugal, Ireland, Greece, Italy and Cyprus. The austerity demands of the German bankers and their equally myopic surrogates have exacerbated the economic travail and misery of ordinary citizens in those E.U. countries.

     In the United Kingdom, which still maintains its own currency and does not belong to the E.U.'s monetary union, the Tory Party's austerity measures are having an equally devastating effect. John Cassidy, in a February 7, 2013 post for the New Yorker ("U.K. Lesson: Austerity Leads to More Debt"), describes a new study from the Institute of Fiscal Studies, a London-based think tank.  In its annual report on of the U.K.'s finances, the I.F.S. observed that out that the budget deficit, because of the austerity measures in place, would still be so large that next year the Chancellor, George Osborne, will be required to borrow about sixty-five billion pounds more than he had anticipated - or about four per cent of the U.K.'s G.D.P.)

     Cassidy quotes the Jeremy Warner of the British Daily Telegraph to the effect "This is a truly desperate state of affairs that demands swift and decisive action. We seem to have the worst of all possible worlds, with nil growth, some very obvious cuts in the quantity and quality of public services, but pretty much zero progress in getting on top of the country's debts."

     Cassidy further notes that when Prime Minister, David Cameron and the Tory Party assumed office in May, 2010, and chose to implement an extensive program of austerity measures, the U.K. economy was slowly recovering from the Great Recession. By the final quarter of 2011, the U.K.'s economy had fallen back into a recession, from which it has yet to emerge.

     Here in the United States, the insistence upon austerity measures has continued to choke off an economic recovery. More than a quarter of the population has descended into poverty; and long-term joblessness, particularly among older workers, has become intractable. At the same time recent college graduates, burdened by massive debts, are condemned to menial jobs as waiters and independent contractors. The pernicious policies of the balance-budget advocates and the sequester have begun to further chill the economic climate. Simultaneously, the 1% - those employed in the financial and technology sectors and in the multi-national corporations that have de-industrialized the economy and shipped middle class jobs overseas - have continued to amass unparalleled wealth. 

     As the gap between the many and the very few has continued to widen, those who have been been to emulate the lifestyle of Nick Carraway in this country's Second Golden Age would be wise to heed Yeats' prophetic warning in the Second Coming.:  

      Those politicians and pundits who urge austerity measures fail to understand the long-term consequences: The middle class will continue to erode as the safety net contracts. That trend, if not reversed, could, in a worst-case scenario, precipitate the collapse of this country's consumer-driven, market economy. An increasingly impoverished population will, at some point, become too poor to shop even at Wall-Mart.    

     The philosopher George Santayana reminds us that "Those who cannot remember the past are condemned to repeat it." The lessons from those countries struggling in Europe today and the lesson of 1937 when Franklin Roosevelt prematurely sought to reign in the stimulus of the New Deal and to address budget deficits (which thereby deepened the Great Depression) are proof positive that austerity measures are counter-productive. They are prescriptions for prolonged misery and suffering.

      Until this past week, the new pope lived in a small apartment, rather than in the opulent archbishop's residence in Buenos Aires and he often commuted by bus and train mingling with fellow Argentines.

     At a Holy Thursday service in 2001, he washed and kissed the feet of AIDS patients. He also uged Argentinians not to travel to Rome to celebrate if  he were chosen to become the pope, but to give their money to the poor instead.  

    In a press conference on Saturday, March 16, as reported by CNN, Pope Francis remarked that he hoped for a church that was both poor and "for the poor." He explained that a fellow cardinal from Brazil told him "don't forget the poor" as it became clear that he had received a majority of the votes in the conclave. Pope Francis explained to the reporters present that this thought remained in his mind after he realized he had been chosen as the new pope.

    "Right away, with regard to the poor, I thought of St. Francis of Assisi, then I thought of war," he told the reporters. "Francis loved peace and that is how the name came to me." He said he also thought of St. Francis of Assisi's concern for the natural environment, and how St. Francis was a "poor man, a simple man, as we would like a poor church, for the poor."

      The career of Congressman Paul Ryan, who also claims to be a Catholic steeped in the church's social teaching, stands in stark contrast to the new pope. Now a very wealthy man, Ryan, as the Chairman of the House Budget Committee, has waged incessant war against the poor and the middle class.

    Ryan, who was born in Janesville, Wisconsin, attended a Catholic High School there. After his father's untimely death at age 55, Ryan received Social Security survivors benefits which enabled him  to pay for his college education. At Miami University in Ohio, Ryan majored in economics and political science and he became interested in the writings of Friedrich Hayek, Ludwig von Mises, and Milton Friedman. He has described his friendship with libertarian professor Richard Hart with whom he often met to discuss the theories of these economists and of Ayn Rand. As a result of Hart's recommendation, Ryan received an internship in the D.C. office of Wisconsin GOP Senator Robert Kasten, where he began his career as a GOP apologist and sycophant.

    At a 2005 Washington, D.C. gathering that celebrated the 100th anniversary of Ayn Rand's birth, Ryan praised Ayn Rand and said that she inspired him to become involved in public service. In a speech that same year to the Atlas Society, he said he grew up reading Rand, and that her books taught him about his value system and beliefs. Ryan required staffers and interns in his congressional office to read Rand and gave copies of her novel Atlas Shrugged as gifts to his staff for Christmas. In that Atlas Society speech, Ryan described Social Security as a "socialist-based system"

       In an article in the New Yorker ("Ayn Rand Joins the Ticket," August 11, 2012), Jane Mayer quotes Ryan as having said "What's unique about what's happening today in government, in the world, in America, is that it's as if we're living in an Ayn Rand novel right now. I think Ayn Rand did the best job of anybody to build a moral case of capitalism, and that morality of capitalism is under assault."

     As Ryan rose to national prominence in the GOP, he began to dissemble. In an interview on the Christian Broadcasting Network in 2012, he stated that, as a Catholic, the Church's "social magisterium" was the inspiration for his most recent House budget proposal. Ryan claimed that one essential goal of that teaching was to prevent the poor from staying poor and not becoming lifelong dependents of the government. Ryan further stated that, "A person's faith is central to how they conduct themselves in public and in private."

    In April 2012, after he was excoriated by Georgetown University faculty members and Catholic theologians from across the country because of his budget plan, Ryan repudiated Ayn Rand's philosophy because she was an atheist, and argued that it "reduces human interactions down to mere contracts." He also insisted that  the reports of his adherence to Rand's views an "urban legend" and stated that he was deeply influenced by his Roman Catholic faith and by Thomas Aquinas. But the kind of anti-government rhetoric advanced by Congressman Ryan is antithetical to Catholic social teaching.

     Thomas Aquinas argued that, with respect to relations among one another, human beings are obliged to seek justice as the summum bonum - the highest good. As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Aquinas quotes Isodore, "Laws are enacted for no private profit, but for the common benefit of citizens." Further, "A law properly speaking, regards first and foremost the order of the common good..."

    Aquinas insisted that justice is based upon a notion of proportionality. "Justice is a habit whereby a man renders to each one his due by a constant and perpetual will" and "Just as love of God includes love of one's neighbor,...so is the service of God rendering to each one his due." Finally, Aquinas invokes Cicero to the effect that "...'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

    Thomas Aquinas taught that, because God endowed each man in his own image and likeness, man has become the steward for the earth, and for all of its creatures and its bounty. It is for that reason that Catholic social philosophy to the present remains deeply skeptical about arguments for an unregulated market economy dominated by the profit motive and the accumulation of wealth. As Aquinas observed, "It is lawful for a man to hold private property" but "Man should not consider his outward possessions as his own, but as common to all, so as to share them without hesitation when others are in need ..." Historically , Catholic social doctrine has condemned, in theory if not in practice, aggrandizement and selfishness. Avaritia (greed) and luxuria (extravagance) are counted as two of the Seven Deadly Sins.

       The Catholic conservative political tradition, harkening back to the Greeks and Romans, continues to insist that individuals realize their full potential and humanity to the extent to which they participate as full members of a political society - as citizens. That notion of citizenship, based upon mutual obligations and reciprocal rights, remains central to that political philosophy.

        Catholic social thought is essentially communitarian in contrast to the political philosophy of Ryan and other eighteenth century liberals who contend that society and the state are abstractions and that only the individual is real.

     The Spanish philosopher Miguel de Unamuno, echoing the tradition of Catholic social thought and epistemology, countered that the self is the abstraction. He rejected the argument that one's ability to reason and the quality of that reasoning are unique attributes that belong to the solitary self as opposed to the social self. Because of the self's ephemeral nature, the knowledge, customs and habits contained within a given political culture are essential guideposts to properly orient the self to its social self and to other social selves. Which then is the abstraction: the self or society?

     It was Edmund Burke, a Catholic sympathizer and an alleged favorite of William Buckley, who observed that political society exists as an historical project into which individuals enter and depart while sharing a common destiny: "...society is indeed, a contract....It is to be looked on with reverence; because it is not a partnership in things...It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born..."
                             
    Catholic social thought emphasizes that the state exists to serve the needs of civil society; not as libertarians and classical liberals would have it, to serve only the needs of the individual. As such, the state should not be viewed as a passive instrument, designed merely to protect private property or to protect rights,  but imposes reciprocal obligations upon each citizen as a member of a political community. Consistent with the teaching of St. Thomas of Aquinas, the French Catholic philosopher Jacques Maritain reminds us that "...the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the crucial need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."

       Unlike the new pope, Paul Ryan has never expressed a commitment to the idea of social justice, nor is he able to comprehend the notion that the public interest is something different and distinct from a mere aggregation of selfish interests. Faced with a growing specter of poverty and extreme economic inequality today, Congressman Ryan remains blithely oblivious to the suffering all around him. How can this insensitivity and indifference be reconciled with the message of the gospels and the social thought of Thomas Aquinas?

     Pope Francis gets the essential  message of the gospels; while Congressman Ryan and his fellow Catholic GOP Congressman, Speaker Boehner, haven't got a clue.

Author tags:

    Equally disturbing, the three judge panel expressly rejected  contrary decisions reached by other federal courts, including Evans v. Stephens, 387 F. 3d 1220 (11th Cir.,2004). Those earlier decisions affirmed the constitutional validity of presidential recess appointments.  

    The appeals court also chose to ignore a long-standing principle that counseled for judicial restraint when ruling upon constitutional issues: "The Judicial Branch is the controlling interpreter of how the Constitution applies. But the President, in his capacity as chief executive of this country, is also sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional. See United States v. Allocco, 305 F.2d 704, 713 (2d Cir.1962)  (Recess Appointments Clause case); see also U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing 'In the performance of assigned constitutional duties each branch of the  Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.'). To be sure, the presumption is a rebuttable one; but the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough. We are not persuaded that the President acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the President's authority" Evans, at 1222.
 
    In Canning, the appeals court, after invoking the legal fiction of "original intent," insisted that there was only one possible meaning to the noun "Recess" as that word appears in  Article II,  §2, cl.3 of the Constitution: "It is this difference between the word choice 'recess' and 'the Recess' that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word 'the' was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Languag0 2041 (1755)(defining 'the' as an 'article noting a particular thing' (emphasis added)). Unlike 'a' or 'an,' that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board's proposition that when the Framers said 'the Recess,' what they really meant was 'a recess.' This is not an insignificant distinction. In the end it  makes all the difference." Canning, at 17.
    
     Further, the court opined, "Six times the Constitution uses some form of the verb 'adjourn' or the noun 'adjournment' to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term ' the Recess': once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the 'adjournment' usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term 'the Recess,' and that it was something different than a generic break in proceedings." Canning, at 17.

     As a matter of simple logic, the court argued that, "The structure of the Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire 'at the End of their [the Senate's] next Session.' Again, the Framers have created a dichotomy. The appointment may be made in 'the Recess,' but it ends at the end of the next 'Session.' The natural interpretation of the Clause is that the Constitution is noting a difference between 'the Recess' and the 'Session.' Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in 'the Recess.'" Canning, at 17-18.

      The three judges also insisted that, at the time the Constitution was drafted 1787, there was only one possible definition of the meaning of the noun "Recess"as modified by a definite article, "the," and that they knew, for certain, the precise meaning that the Founders intended.  The court thus engaged in a feat of legerdemain and disregarded all contrary definitions of  "Recess' that contemporary dictionaries showed the Founders would have also understood the noun to mean. For example, the Evans Court noted that "The dictionary definitions that have been called to our attention (or that we have found) did not, for example, speak of a minimum time. See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining 'recess' as 'retirement; retreat; withdrawing; secession' or 'remission and suspension of any procedure'). And the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause." Evans, at 1224.

    Nevertheless, the D.C. Court of Appeals concluded: "In short, we hold that 'the Recess' is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec.S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644-45." Canning, at 30.

    After the panel successfully imposed a judicial imprimatur upon its own definition of the  noun "Recess," the three judges next turned their attention to the meaning of the verb "happen" as that verb appears in the recess appointments provision. " Upon a simple reading of the language itself, we conclude that the word 'happen"'could not logically have encompassed any vacancies that happened to exist during 'the Recess.'" Canning, at 31.

    "For our logical analysis of the language with respect to the meaning of 'happen' to be controlling, we must establish that it is consistent with the understanding of the word contemporaneous with the ratification. Dictionaries at the time of the Constitution defined 'happen' as '[t]o fall out; to chance; to come to pass.'1 Johnson, supra, at 965; see also Evans, 387 F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety of eighteenth-century dictionaries and concluding that they all defined 'happen' similarly). A vacancy happens, or 'come[s] to pass,' only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. The term 'happen' connotes an event taking place -- an action -- and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time." Canning, at 31.

    Hence, the court concluded, "In light of the extensive evidence that the original public meaning of 'happen' was 'arise,' we hold that the President may only make recess appointments to fill vacancies that arise during the recess."  Canning, at 39.

      Despite its assurance that the verb "happen" could only be understood as a synonym for the  verb "arise," the D.C. Court of Appeals committed an assault and battery upon the Englsih language as it intentionally chose to disregard other well-established 18th century understandings of the verb "happen." For example, the NLRB and the Department of Justice, in their reply brief, emphasized that  "As explained almost hundred years ago, the term 'happen''does not undisputedly mean, as the Company suggests, 'happen to occur'; it "may mean, also . . .'happen to exist.'" 1 Op. Att'y Gen. 631, 632 (1823). When 'determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning,' courts look to "[l]ong settled and established practice" as a "consideration of great weight in a proper interpretation" of the Constitution's text. The Pocket Veto Case, 279 U.S. at 688-90 (internal quotation marks omitted)."(NLRB's Reply Brief, at 66)        
    The three judges in this case, despite their claim of fidelity to the contemporary meaning of words, also ignored the etymology of the verb happen: "c.1300, 'to come to pass, occur,' originally 'occur by hap, to have the (good or bad) fortune (to do, be, etc.);' see hap (n.). Replaced Old English gelimpan, gesceon, and Middle English befall. In Middle English fel it hap meant 'it happened.' Related: Happened; happening." OnLine Etymology Dictionary.

    The pronunciamentos of the three appeals court judges regarding the precise meaning of words are little different from the entreaties of Christian fundamentalist preachers who insist upon a literal interpretation of the bible. The judges' convictions that the precise and unambiguous meaning of words in the text of the constitution -as they were understood by the Founders at the time the document was drafted - must alone control, and that all ambiguities, inferences and subsequent evolutions in the meaning of words must be disregarded,  is a theological, rather an a legal proposition.

     As applied, the judicial doctrine of "original intent" imposes the dead hand of the past upon the present; reduces the constitution to a desiccated, no longer relevant document; and perverts constitutional analysis into an exercise in exegesis.  

    Toward  the end of its decision, the panel piously invoked the words of Chief Justice John Marshall in Marbury v. Madison: "As we recalled in our analysis of the first issue, '[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.' Marbury, 5 U.S. (1 Cranch) at 177." Canning, at 37. 

    Ironically, the advocates of strict construction and constitutional literalism fail to comprehend that their fidelity to the doctrine of original intent may also be the cause of their undoing. In their zeal to find new tools to diminish the ability of the government to act on behalf of the public interest, they overlook one obvious but fatal flaw in their view of what the Constitution explicitly authorizes: John Marshall's decision in Marbury v. Madison notwithstanding, there is no language that can be found anywhere in the text of the United States Constitution that expressly suggests or permits the Supreme Court or any judges of the United States to pass upon the constitutionality of statutes enacted into law by the Congress or to declare the acts of the chief executive unconstitutional.

   Although Alexander Hamilton in Federalist No.81 may have intimated that such a power might be a necessary extension of the Supreme Court's jurisdiction to enforce Article VI of the Constitution, the Supremacy Clause, that is incredibly fragile scaffolding upon which to build an entire school of aggressive, arrogant jurisprudence that is determined to reign in the powers of the federal government.

   The lack of explicit textual authority in the constitution that would support the kind of judicial overreach in which the appeals court in Canning engaged should prompt the Court of Appeals and the five right-wing jurists on the Supreme Court to ponder the words allegedly attributed to Andrew Jackson in response to the Supreme Court's decision in Worcester v. Georgia, 31 US 515 (1832), "John Marshall has made his decision, now let him enforce it!"    

.

    During the Civil War, in response to the threat posed by the Confederacy, President Abraham Lincoln suspended the writ of habeas corpus and authorized federal militias to try and to imprison suspected Confederate sympathizers.

    In response to the need to mobilize in World War I and World War II, Presidents Wilson and Roosevelt, with Congressional authorization, renewed military conscription, and converted the U.S. economy into a command economy in which goods and services for civilian use were severely rationed and manufacturers were directed to convert their production lines for military use.

    In addition, during World War I, the government of the United States prosecuted citizens simply because they publicly expressed their opposition to the military draft and the U.S. entry into the war. In Schenck v. United States, 249 U.S. 47 (1919), the United States Supreme Court gave its imprimatur to the prosecution of Charles Schenck, Secretary of the Socialist Party of the United States, under the Espionage Act of 1917 for having printed and distributed anti-war leaflets. In an often quoted statement by Oliver Wendell Holmes, Jr., who authored the court's unanimous decision, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

     During World War II, thousands of American citizens of Japanese ancestry were imprisoned in internment camps without having been charged or prosecuted for any wrongdoing. In the infamous case of Korematsu v. United States, 323 U.S. 214 (1944), the U.S. Supreme Court upheld the constitutionality of the exective order that authorized these mass arrests.

    On September 11, 2001, 2,726 people were killed in the attack upon the World Trade Center in New York City. To address a perceived threat of terrorism from Muslim extremists, President Bush and the Congress of the United States instituted a series of draconian policies, captioned as the Patriot Act.  That legislation, which President Obama and the current Congress continue to support, granted federal agencies broad powers to interrogate suspected terrorists, eavesdrop on private communications and created a gigantic new federal department, Homeland Security.

    In the fiscal year 2011, the DHS was given a budget of $98.8 billion and employed more than 200,000 individuals. Despite serious concerns upon about infringements of First, Fourth, Fifth and Sixth Amendment rights, the Supreme Court has declined to find any significant provisions of the Patriot Act to be unconstitutional.

    Since 1960, more than one million Americans have died in firearm-related suicides, homicides, and unintentional injuries, according to the Violence Policy Center. In the seven years after September 11, 2001, ninety-nine thousand people were murdered in the United States. The Brady Center to Prevent Gun Violence reports that more than 30,000 people are killed by guns in the United States every year, or an average of 82 gun deaths per day.

    The political and judicial response to this extraordinary and escalating massacre of American citizens stands in a stark contrast to the government's previous responses to domestic and external threats. Elected officials at the federal, state and local levels have refused to enact sensible gun regulations as they have been cowered by threats of political reprisals from the National Rifle Association and single-issue voters.

    The Supreme Court's 2008 decision in District of Columbia, et al v. Heller, 128 S. Ct. 2783 (2008) has exacerbated the crisis. Justice Scalia's tortured constitutional analysis and his inability to comprehend the grammatical interconnection between a subordinate clause in a sentence -- "A well-regulated Militia, being necessary to the security of a free State..." --and the main clause-- "... the right of the people to keep and bear Arms, shall not be infringed" -is indicative of the ideological bias that Scalia and his four right-wing colleagues exhibit along with so many elected officials, gun manufacturers, sellers and gun owners.

    Their commitment to outdated and positively harmful notions of eighteenth century individualism is so complete that they have become oblivious to the primary duties of any government: to ensure public safety and to protect its citizens against violence. In the name of an abstract right of solitary individuals to purchase and possess guns, the right of concrete human beings - who have died and will continue to die because of gun violence- to be safe from harm is denied: "We are aware of the problem of gun violence in this country, "Justice Scalia piously intoned, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table." 

    Surely no abstract constitutional claim, no matter how broadly framed or inaccurately construed, can possibly trump the most precious and fundament right of every human being: the right to life itself. A government which will not - or can not - restrain the continuing carnage wrought by murderers who have been given license to purchase guns deserves to forfeit any claims to loyalty by its citizens.