|
|
| Post Number: 1
|
wix 
politically unstable
Group: Members
Posts: 37
Joined: Jun. 2002
|
 |
Posted on: Jun. 29 2002,00:15 |
|
   |
Americans, it seems, have a strange fascination-- almost a religious phenomenon with their document, devine light, god inspired, and brilliant consitution. But the consitution has been changed, thousands of times, not just through amendments because that isn't really nessicary; we have the courts to do it for us.
While reading through many of the posts here, it seems that most of us are mixing the issue of what the consitution interpetation may be done in the United States Supreme Court. It is my intent to argue that the court has the descretion to interpret the consitution in any means that are good for the state.
A little background infromation:
The consitution sets up three branches of the government. Article I relating to the executive, Article II relating to the legislative, and Article III, which creates a high court with (article III, sec 2) judicial powers extending to "... all laws... arising out of this consitution..." Marbury v. Madison setup the court's jurisdiction to nullify laws and actions of the government (often, and herein referred to as 'judicial review' .
Now, The question is if the court is over extending it's rights to look at the consitution. Many "Gun toting, confederate flag loving republicans" (-Al Gore) argue that the court overstepped it's bounds in casses like Ro v. Wade (on interping abortion rights) or Texas v. Johnson (in outlawing flag burning laws). I don't think it did in either.
Our friendly conservative propgandist, CK, argued relevant to the posts on the pledge of allengence, that the court in San Fransisco overstepped it's bounds because:
| Quote | I think the whole matter is bunk. The constitution says freedom OF religion, not freedom FROM religion. the purpose was so that the secular government wouldn't adobt a state religion, not to purge secular society of all mentions of religion of any sort.
...
what are you scared of? the constitution being interpreted how the founders wanted it to be?
|
CK misses the point, again.
A little while ago I wrote in the 2nd amendment post that the 9th amendment and US. v Curshank extended the right to own a gun past the second amendment (hence, revoking the 2nd amendment wouldn't get rid of gun rights). CK, you, posted an agreement. Only now that this the court has made a more liberal descison than your normal social conservative bullshit, you want a strict interp of the consitution. It's clear to anyone who reads the 2nd amendment that the founding fathers never really intended it the NRA does. Read it outloud: "A well regulated militia, being nessicary to the security of a free State,... the right of the people to keep and bear arms shall not be infringed."
Now the first thing when reading author's intent is you have to understand the author's timeframe and period. The founding fathers were called to convention to do build a unified army to stop the farmer's revolts. Shay's rebellion really shook up the people, and you can see that most of the founding father's, Madison especially, never really trusted the people. Madison argues in Federalist #10 that the people are rash and shouldn't be trusted, but what should be trusted and what must be protected (in latter papers with John Jay), are the States! Now reread that passage, it makes sense.
What have I just proved? That handguns or automatics shouldn't be trusted to the indivdiual, or that the founding father's wouldn't have intended them to be trusted to the individual? Even if I've failed to show one way or the other... It doesn't matter.
In answer to CK's earlier question, Am I scared of the consitution being interpreted how the founders wanted it to be? OF COURSE I'm afraid of the consitution being intrepted that way. I happen to think my neighbor, who is African American, is worth more than 3/5ths a human being.
The court is bound to protect and uphold not the words of the consitution but it's intent of freedom and liberty and the basis for what this country stands on.
Most american's can tell you many of the liberties granted them by the consitution, but few even know, or mention the one granted by the 9th.
AMENDMENT IX
"The enumeration in the consitution, of certain rights, shall not be constructed to deny or desparage others rettained by the people."
Just because it's not written down in the consition doesn't mean the people cannot maintain it as a right, and should they do that, does the consitution then have the power to deny them that under the 9th amendment? NO it does not. Prooving that the founding father's original intent was X, doesn't mean that doing X was justified.
Social conservatives miss the mark big time. Their major advocacy against abortion rights is that the court overstepped it's bounds because a "right of privacy isn't enumerated in the consitution." Then they argue the same crap with burning the flag.
Our consitution works, because we change it on a daily basis. Every court decision every law that is passed works as a proxy to alter to some part the original intent of the consitution for today's language, social structure, and economic conditions.
--------------
"No man's life, liberty, or property is safe while the legislature is in session."--Judge Gideon J. Tucker, 1866.
|
 |
|
|
| Post Number: 2
|
Pravus Angelus
Codito Ergo Sum
Group: Members
Posts: 81
Joined: May 2002
|
|
Posted on: Jun. 29 2002,00:41 |
|
 |
watch wix...I just know it, there's gonna be an arg. that marb vs. madison is faulty because it's outside the scope of author's intent..., I'm gonna laugh when I see it...
--------------
"Lately, the only thing keeping me from being a serial killer is my distaste for manual labor"
--Dilbert
|
|
|
|
| Post Number: 3
|
demonk
The other white meat
Group: Members
Posts: 800
Joined: Aug. 2000
|
|
Posted on: Jun. 29 2002,00:44 |
|
|
Wow. If only more people could post as intelligently as you (this includes me  ), we could have some really good discussions (and not just arguements). And good point about bringing up Shay's Rebellion. I need to go back and reread all my old history books. I've forgotten too much of where we have come, so it's hard to see where we are going.
--------------
I'm just two people short of a threesome!
|
|
|
|
| Post Number: 4
|
wix
politically unstable
Group: Members
Posts: 37
Joined: Jun. 2002
|
|
Posted on: Jun. 29 2002,00:47 |
|
|
| Quote (Pravus Angelus @ 28 June 2002,16:41) | | watch wix...I just know it, there's gonna be an arg. that marb vs. madison is faulty because it's outside the scope of author's intent..., I'm gonna laugh when I see it... |
Pravus, that is the point. The court was correct in deciding Marbury v. Madison (even most conservatives won't argue otherwise!
--------------
"No man's life, liberty, or property is safe while the legislature is in session."--Judge Gideon J. Tucker, 1866.
|
|
|
|
| Post Number: 5
|
Pravus Angelus
Codito Ergo Sum
Group: Members
Posts: 81
Joined: May 2002
|
 |
Posted on: Jun. 29 2002,00:48 |
|
|
| Quote | | Wow. If only more people could post as intelligently as you (this includes me ), |
give up now. nobody's as smart as ben and that'll never change 
good to set your goals high though...
--------------
"Lately, the only thing keeping me from being a serial killer is my distaste for manual labor"
--Dilbert
|
|
|
|
| Post Number: 6
|
CatKnight
Jedi Republican
Group: Members
Posts: 3807
Joined: Dec. 2000
|
|
Posted on: Jun. 29 2002,02:22 |
|
|
| Quote | Now the first thing when reading author's intent is you have to understand the author's timeframe and period. The founding fathers were called to convention to do build a unified army to stop the farmer's revolts. Shay's rebellion really shook up the people, and you can see that most of the founding father's, Madison especially, never really trusted the people. Madison argues in Federalist #10 that the people are rash and shouldn't be trusted, but what should be trusted and what must be protected (in latter papers with John Jay), are the States! Now reread that passage, it makes sense.
What have I just proved? That handguns or automatics shouldn't be trusted to the indivdiual, or that the founding father's wouldn't have intended them to be trusted to the individual? Even if I've failed to show one way or the other... It doesn't matter. |
You havn't proven anything. The government's power should be derived from the people, if the people don't trust the government, then maybe they should revolt. The states DO have a right to make a militia, but that is not what the second amendment is referring to really.
The Bill of Rights is a list of individual rights. The individual right to free speech and religion. The individual freedom from having to quarter soldiers. The individual freedom from unreasonable search and seizures. The individual freedom from double jeopardy. The individual right to confront witnessess against you. The individual right to trial by jury. The individual freedom from cruel punishment. The enumeration of rights to individuals. And lastly, the STATE's rights to form a militia, but not the PEOPLE'S? Why would amendments 1 and 3-10 be about individual's rights, but not the 2nd? I find it pretty hard to misinterpret "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." anyways.
| Quote | | In answer to CK's earlier question, Am I scared of the consitution being interpreted how the founders wanted it to be? OF COURSE I'm afraid of the consitution being intrepted that way. I happen to think my neighbor, who is African American, is worth more than 3/5ths a human being. |
Thats why we have amendments and the power to make them. Being a strict constitutionalist doesn't mean abiding by the original wording of the constitution. It means relying on the spirit of the constituion and applying modern principles and language. For example, the 2nd amendment says "A well regulated militia, being nescessary for the security of the state". The word "regulated" back in the day meant trained, or proficient. As strict constitutionalist, I would want to keep with the spirit of the constitution and say "the founders meant that individuals need guns to stay free". A liberal judge would take the term "well regulated militia" out of context by applying modern day language and saying "the founders wanted guns to be restricted to the national guard only". This isn't the spirit of the constitution, however.
--------------
[url=http://www.personal.psu.edu/users/d/b/dbl125/dfa.jpg]If you strike me down, I shall become more powerful that you can possibly imagine.[/url]
|
|
|
|
| Post Number: 7
|
Darth Liberus
Emperor of Detnet
Group: Members
Posts: 2246
Joined: Jan. 1970
|
|
Posted on: Jun. 29 2002,02:37 |
|
|
and, of course, there's always the fact that the framers of the Constitution knew damn well what they were doing. every word in there was chosen very carefully. some of the passages are purposely very general and wide open to interpretation. some of them are very specific.
for example, that's why the First Amendment opens with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." instead of something like "Congress shall not establish a Church of State, and freedom of religion shall be guaranteed."
The way it's written, any law respecting ("to show appreciation for; to hold in esteem") an establishment of religion is illegal. At the same time, any law that prohibits people from practicing their religion is illegal as well.
It's pretty clear that this passage is intended to say one thing, and one thing only - the government may not give any religion preferential treatment. There's no room for interpretation.
Other passages are much more vague... I'd dig one up but I gotta go home right now 
--------------
"let's travel around with our laptops, plug in, and destroy the very fabric of modern reality." -a2n3d7y
|
|
|
|
| Post Number: 8
|
wix
politically unstable
Group: Members
Posts: 37
Joined: Jun. 2002
|
|
Posted on: Jun. 29 2002,18:56 |
|
|
[quote=CatKnight,28 June 2002,18:22][/quote]
| Quote | You havn't proven anything. The government's power should be derived from the people, if the people don't trust the government, then maybe they should revolt. The states DO have a right to make a militia, but that is not what the second amendment is referring to really.
The Bill of Rights is a list of individual rights. The individual right to free speech and religion. The individual freedom from having to quarter soldiers. The individual freedom from unreasonable search and seizures. The individual freedom from double jeopardy. The individual right to confront witnessess against you. The individual right to trial by jury. The individual freedom from cruel punishment. The enumeration of rights to individuals. And lastly, the STATE's rights to form a militia, but not the PEOPLE'S? Why would amendments 1 and 3-10 be about individual's rights, but not the 2nd? I find it pretty hard to misinterpret "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." anyways.
|
Actually, you're proving my point for me. Reguardless of what the author's intent is it is the PEOPLE who must decide and the supreme court who must uphold. Reading the constitution strictly is rediculous because author's intent doesn't take into account these factors. Even if your interpetation of the 2nd amendment is correct, which I don't think it is, it doesn't mitigate the fact that the supreme court is correct in upholding gun rights even if the 2nd amendment was thrown out. Likewise, the US Supreme Court has the right to say the constitution implies a Right of Privacy even though it's not specifically enumerated.
| Quote |
Thats why we have amendments and the power to make them. Being a strict constitutionalist doesn't mean abiding by the original wording of the constitution. It means relying on the spirit of the constituion and applying modern principles and language. For example, the 2nd amendment says "A well regulated militia, being nescessary for the security of the state". The word "regulated" back in the day meant trained, or proficient. As strict constitutionalist, I would want to keep with the spirit of the constitution and say "the founders meant that individuals need guns to stay free". A liberal judge would take the term "well regulated militia" out of context by applying modern day language and saying "the founders wanted guns to be restricted to the national guard only". This isn't the spirit of the constitution, however.
|
No, a strict constitutionalist does exactly what you're saying. They read the consitution and try to make their concepts, liberal or otherwise fit into the mold. They assume that regulated has additional meaning, when infact it doesn't even need to be considered. The people hold for themselves rights, and the court can not object.
My point about the 3/5ths a human was that the authors, founders, god inspired men if you will, were fallable or at least stuck in their times. Why is it so much more important that congress pass consitutional amendments on things that are obviously part of the american spirit. The system of checks and ballances still exists that way, congress can pass an amendment at any time to mitigate the new decision. Sometimes the court is the only body which can do things quickly, or things which would invoke a lot of political termoil. eg flag burning, stricking down rediculous child protection statues, manditory filtering, conservative placed bans on contraception or police strip searching women in chicago for traffic violations. How many constitutional amendments do you expect congress to pass considering each one takes about 10 years to do.
In any case, you miss the argument that I'm making. It doesn't even matter what the original intent is.
The US Supreme Court has the power to say that certain individual or states rights exist within the constution. Not only as a mandate from the people, but from the 9th amendment as well.
--------------
"No man's life, liberty, or property is safe while the legislature is in session."--Judge Gideon J. Tucker, 1866.
|
|
|
|
| Post Number: 9
|
wix
politically unstable
Group: Members
Posts: 37
Joined: Jun. 2002
|
|
Posted on: Jun. 29 2002,19:00 |
|
|
| Quote (Darth Liberus @ 28 June 2002,18:37) | and, of course, there's always the fact that the framers of the Constitution knew damn well what they were doing. every word in there was chosen very carefully. some of the passages are purposely very general and wide open to interpretation. some of them are very specific.
for example, that's why the First Amendment opens with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." instead of something like "Congress shall not establish a Church of State, and freedom of religion shall be guaranteed."
The way it's written, any law respecting ("to show appreciation for; to hold in esteem") an establishment of religion is illegal. At the same time, any law that prohibits people from practicing their religion is illegal as well.
It's pretty clear that this passage is intended to say one thing, and one thing only - the government may not give any religion preferential treatment. There's no room for interpretation.
Other passages are much more vague... I'd dig one up but I gotta go home right now |
DL, my point was that the author's of the consitution weren't gods. They didn't know eveything, and couldn't have foresee everything. The consitution, like any other political document, is subject to a) stupidity, b) political compromises, c) misiniterpretation, d) changing times, e) unintended consequences and f) a 'neglect' to enumerate, that is write, something that needs to be there for today's society.
The consitution says nothing on abortion, pornography, the internet, childrens rights, .... on and on. The only way that we can READ these things is by implying that the constituion would really extend, in spirit, to these things.
The authors didn't think up a lot of things, but they did leave paths to change. I argue the most valuable is the US Supreme Court.
--------------
"No man's life, liberty, or property is safe while the legislature is in session."--Judge Gideon J. Tucker, 1866.
|
|
|
|
| Post Number: 10
|
Bob_the_Cannibal
Anonymous Coward
Group: Members
Posts: 313
Joined: Feb. 2002
|
|
Posted on: Jun. 29 2002,19:30 |
|
|
| Quote (CatKnight @ 28 June 2002,18:22) | The Bill of Rights is a list of individual rights...And lastly, the STATE's rights to form a militia, but not the PEOPLE'S? Why would amendments 1 and 3-10 be about individual's rights, but not the 2nd?...
...The word "regulated" back in the day meant trained, or proficient. As strict constitutionalist, I would want to keep with the spirit of the constitution and say "the founders meant that individuals need guns to stay free". A liberal judge would take the term "well regulated militia"...[and say] "the founders wanted guns to be restricted to the national guard only". This isn't the spirit of the constitution, however. |
CK makes an excellent point there, even if I do not agree with his platform on other issues...
|
|
|
|
|
|
|
