You can spin NO LAW any way you want, but no matter how much spin you put on it, it is a perversion of the words.
If you say that the words mean anything other than what any fifth grader would understand them to be, you are accusing the Framers of being hypocrites.
Again, kindly post any reference you may have from Madison's notes or any other source indicating that any of the Framers of the Bill of Rights meant anything other than what they wrote.
Textualism/originalism - whatever ism you want to call it - is simply a sham.
Everyone, repeat EVERYONE, has her/his own version of what the Framers meant. At least I am up front enough to admit it.
I proceed from first principles; you proceed from other first principles. No matter how bizarre I think yours are, I respect your right to hold and to publish them. I expect the same from you.
Remember, if you say that divulging nuclear secrets lies outside the First Amendment, what is there to prevent someone saying, at some future date, that your speech is outside the First Amendment?
I'll err, like Thomas More in his response to his son-in-law, on the widest possible interpretation of what the Constitution says. I'll not cut down freedom of speech, not even to get at the (to me) non-existent Devil.
As FDR once said so nobly, "The only cure for the evils of free speech is more free speech."
In the words of respected historian and jurist Joseph Story:
§ 1874. The next clause of the amendment respects the liberty of the press. "Congress shall make no law abridging the freedom of speech, or of the press." That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.
The First Amendment does not establish an absolute right to speak or write whatever one wishes.Originally Posted by chester
I have not suggested that the Framer's meant something other than what they wrote; I have only suggested that the Framer's did in fact mean something by what they wrote.Originally Posted by chester
I interpret what you said here to mean that you think Originalism is the best interpretive method of constitutional construction. Is this what you meant? If not, the only basis you can say that it is not is on the basis of Originalism.Originally Posted by chester
If you do not concede this obvious point, I have a feeling this conversation is going to get way out of hand since I will no longer be bound to interpret your posts according to their actual meaning. When you say "no," I can, legitimately, interpret that as a "yes." Operating upon this principle means that there can be no such thing as a straw man.
I have not ever said there could not be reasonable disagreement as to what the framer's meant. I have only said that the objective goal of interpretation is to arrive at the document's original meaning. This necessarily removes the "living constitution" ideology out of the bounds of proper judicial decision making.Originally Posted by chester
I do not think I have been disrespectful to you. But I am not going to be able to agree that you and I both are right.Originally Posted by chester
There is no right in our Constitution that is absolute. So long as our legislatures and courts acknowledge that the original meaning of the constitution is controlling, I will not have to worry about a law that would ban my speech if that speech would have been protected when the First Amendment was ratified.Originally Posted by chester
It is the people who adhere to a living constitution that one really should fear; for judges of this philosophy are able, by their own presuppositions, to legitimately change the meaning of the Constitution, which of course means that they could encroach upon rights that are protected.
Are you prepared to interpret the eighth amendment in its widest possible interpretation and declare that traffic tickets and school suspensions constitute cruel and unusual punishment?Originally Posted by chester
As another example, are you prepared to acknowledge your next door neighbor's Second Amendment right to own an atomic bomb, Abrams tank, or F-16? Or do you only selectively read the Constitution in its "widest possible interpretation"?
And again, if we are to abandon originalism (as it seems you wish to do), then there cannot be any such thing as a strawman.
This statement makes absolutely no sense whatsoever. First off, only Scalia and Thomas are originalists, so lumping in Roberts and Alito in that category is simply wrong. Secondly, neither Thomas nor Scalia adhere to the living Constitution ideology (an ideology that Breyer, at least, has endorsed). So when I say that we should fear judges who depart from the classical view that the proper role of judges is to interpret legal texts in accordance with their original understanding, that cannot be a description of Thomas or Scalia since they are originalists. But it could be a description of Breyer, who does not believe that judges are bound by a legal text's original meaning.Originally Posted by chester
Last edited by Phyllis; 05-26-2008 at 09:17 PM.
I would personally like to know why Chester even cares we have a constitution. It seems if you support the judges deciding the "constitutionality" of a law based on nothing but personal opinion, which is what Chester seems to believe, then you have rendered the constitution useless. There is no criterion for interpretation under Chester's view. How could Chester even claim the 8th amendment doesn't mean speeding tickets are cruel and unusual other than to just reflect personal opinion? Furthermore, if we are to go by personal opinion then you'd have a hard time saying anything President Bush did was unconstitutional other than to say to it was unconstitutional to your view but who cares because it wasn't to him....afterall shouldn't you "respect *his* right to hold and to publish them."
Of course thye Constitution is a necessity to preserve our tradition of ordered liberty.
What is also necessary is that it be constantly reinterpreted in light of changing times, which is exactly what the Framers intended. They wrote on parchment, not on two tablets of stone.
The Constitution is most emphatically what the judges say it is.
Via the amendment process not by judges deciding how it should change. You don't seem to have a system for how it should change. Furthermore, the federalist papers suggest the exact opposite and in fact, state the direct opposite. Your position makes them the most powerful branch of government when they are supposed to be the weakest!What is also necessary is that it be constantly reinterpreted in light of changing times, which is exactly what the Framers intended. They wrote on parchment, not on two tablets of stone.
Then you have no right to be mad at Scalia or Thomas for saying the constitution says "x" when you believes it says "y" since you are not a judge and therefore Scalia and Thomas are right and you are not. Furthermore, if it says what they say then it still brings up the question why a constitution is needed. They could say "speeding tickets are cruel and unusual" and that is how it will be according to your view. This directly contradicts what you said earlier though.The Constitution is most emphatically what the judges say it is.
Seems your standard of interpretation leads to the opposite of the "tradition of ordered liberty".
Then tell us why Brown v. Board of Education directly overruled Plessey v. Ferguson. Tell us why Gideon v. Wainwright directly overruled Wolf v. Colorado. Tell us why West Virginia v. Barnette directly overruled Minersville School District v. Gobitis. Maybe you favor the original decision in each of these pairs of cases.
The Constitution is a living document, not a beetle cast in amber. Like it or not ALL of us, SCOTUS Justices included, filter "objective reality" through our own biases. To say otherwise is simply nonsense just as Kant told us in his Critique of Pure Reason.
I'll take my chances, thank you very much, with the concept of unelected judges telling the nation what the Constitution means. That's been the role of the SCOTUS ever since Marbury v. Madison in 1803. That's the very function of the SCOTUS under the Constitution.
If it means, as the cause of greater personal freedom marches on, that we have to tolerate a few troglodytes such as Nino and Uncle Clarence along the way, so be it.
Now why don't you address any points I said?
People will always have bias but you can limit that by having a standard of interpretation that limits bias. Even Scalia admits that their are "willful judges now and there will be willful judges in the future" but when you have a criteria for the truth you are more objective in your reasoning and not merely basing your conclusions on personal opinion.The Constitution is a living document, not a beetle cast in amber. Like it or not ALL of us, SCOTUS Justices included, filter "objective reality" through our own biases. To say otherwise is simply nonsense just as Kant told us in his Critique of Pure Reason.
You aren't arguing for a "living constitution" (and for the record no legal text is a "living document") but rather no constitution. If the words have no meaning then all the constitution is, is an old piece of paper that we should not care about. An enduring constitution is one that respects the words as adopted while being able to change by the will of the people. You can't provide that with your opinion on a chaotic constitution.
What it means is exactly right. What they want it to mean is not right. When I type something there is intent in what I say. You clearly understand it as you have somewhat responded to my posts. This is because words have meaning and even if those words have a changed meaning 200yrs later my intent of what I wrote at that time hasn't changed. To think otherwise is to just make stuff up.I'll take my chances, thank you very much, with the concept of unelected judges telling the nation what the Constitution means. That's been the role of the SCOTUS ever since Marbury v. Madison in 1803. That's the very function of the SCOTUS under the Constitution.
Furthermore, the idea of a living constitution has only been around since the early to mid 1900s....not 1803.
Who are you to say they aren't given greater freedom? They get to decide what the constitution means right? So how can they be wrong?If it means, as the cause of greater personal freedom marches on, that we have to tolerate a few troglodytes such as Nino and Uncle Clarence along the way, so be it.
You have no standard for constitutional interpretation and as such have rendered the constitution useless.
So then, in each pair of cases that I have cited, which was the decision that utilized the principles of what you call "Originalism?
What "originalist" interpretation was it using in arriving at the "right" decision?
What "originalist" principal was utilized incorrectly in the decision in each pair that you consider "wrong"?
Please be specific. For example, was the SCOTUS correct in Gobitis,, or was it correct in Barnette? Was it correct in Plessey, or was it correct in Brown?
Well you got most of those cases wrong (Wolf v. Colorado was not overruled by Wainwright if I recall correctly) but Neither plessey or brown was from originalism.So then, in each pair of cases that I have cited, which was the decision that utilized the principles of what you call "Originalism?
Again, you seem to be resorting to the result to justify the means to get to a decision. This is what I call "result based thinking" which is not a path we should take nor is it a path directed by those who wrote the constitution.
What criteria do you think should be used in deciding what the constitution means?What "originalist" interpretation was it using in arriving at the "right" decision?
What "originalist" principal was utilized incorrectly in the decision in each pair that you consider "wrong"?
Seems like you want me to provide a lot while never answering any of my questions. Please respect my questions and I can answer yours better.
Brown was probably right for the wrong reasons or perhaps just wrong (a harder one)Please be specific. For example, was the SCOTUS correct in Gobitis,, or was it correct in Barnette? Was it correct in Plessey, or was it correct in Brown?
As for the cases dealing with saying the pledge...I haven't studied them as much so I would probably defer to someone with more knowledge of it who actually holds a standard for interpretation.
When it comes to the freedoms guaranteed by the First Amendment and incorporated against state action through the 14, these magnificent words from Mr Justice Robert Jackson in Barnette work for me:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. 19
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
Let's never forget that Jackson was the USA's chief prosecutor at Nurnberg, so, based on his experiences, I give his opinion great weight.
In general, the Constitution mandates that an individual's freedom extends as far as possible until and unless it infringes on another's. That worked, as Jackson reminds us in Barnette for the Founders, for him, and for me.
And that, Phyllis, is why I oppose restriction's on an individual's right to possess porn. She or he is not infringing on anyone else's rights.