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Thread: Today's lesson in the constitution

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    Quote Originally Posted by Flash View Post
    True. Both sides change their principles based on the outcome. The main problem with original intent is not the concept but determining what the original intent was. The Heller case is a good example in that both sides wrote a long historical analysis of the meaning of the 2nd and both sides present reasonable arguments.

    I don't think the original intent of the 2nd is very important since all interpretations allow gun regulations. Except in extreme cases there is nothing the anti-gun people want to regulate that can't be regulated under current interpretation. It is the political unwillingness of legislative bodies to pass those regulations rather than any interpretation that prevents those regulations from passing although they do exist in some states.
    I find it ironic that the icon of the originalists missed the boat on the issue.

    The author of the Second, initially drew it up with a conscientious objector clause. That was later removed by the Senate. That clause speaks for itself when discussing original intent. Conscientious objector has no meaning in the context of an individual right.

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    Quote Originally Posted by archives View Post
    Read it, the Amendment has a prefatory clause, meaning it has to be defined before you move onto the rest of the Amendment
    "The right to enter the theater, for people who bought a ticket, shall not be infringed." Right-winger: "You can't top me from entering the theater, it doesn't say I had to buy a ticket!"

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    Quote Originally Posted by SmarterthanYou View Post
    bullshit. it says 'right of the people', it does not say 'right of the militia'. It is the absolute height of ignorance to believe that the founders would create a right of a government regulated body of arms bearing individuals over that of the citizenry after they had just won independence from that very government that tried to regulate their arms.
    We’ve been down this road before and you’ve proven yourself to be a constitutional idiot.

    Carried that popgun into the courthouse yet, Barney?

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    Quote Originally Posted by archives View Post
    I don't believe Originalism, which gained attention with Scalia"s decisions, played any role in the majority of cases that you noted.

    The Court's decisions have always been interpreted politically, but with the Robert's Court it often seems the decisions are political, especially when you read some of the opinions of Scalia and Thomas, when the later offers any
    We were discussing original intent and not originalism which are not necessarily the same depending on the person defining the term. All the cases I mentioned used historical analysis which involves the original intent of the law or constitutional provision. The problem with original intent is among the men writing the Constitution and amendments their intent and understanding varied--especially the regional differences existing at the time. Original intent was around much longer than Scalia's originalism.

    I think the court's opinions have always been very political. Marbury v. Madison that gave the court the power of judicial review was just a brilliant way to avoid looking powerless while giving itself a powerful new weapon. But many argue that judicial review was originally intended; otherwise, there is nothing restricting the powers of the legislative and executive branches.

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    Quote Originally Posted by Flash View Post
    We were discussing original intent and not originalism which are not necessarily the same depending on the person defining the term. All the cases I mentioned used historical analysis which involves the original intent of the law or constitutional provision. The problem with original intent is among the men writing the Constitution and amendments their intent and understanding varied--especially the regional differences existing at the time. Original intent was around much longer than Scalia's originalism.

    I think the court's opinions have always been very political. Marbury v. Madison that gave the court the power of judicial review was just a brilliant way to avoid looking powerless while giving itself a powerful new weapon. But many argue that judicial review was originally intended; otherwise, there is nothing restricting the powers of the legislative and executive branches.
    Good dialogue, Flash.

    Refreshing.

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    Quote Originally Posted by Craig234 View Post
    You're actually arguing the opposite of how original intent is often used. Original intent would more be used to say, 'they only meant PAPERS when it was passed, so it only applies to papers and does NOT cover electronic information'.

    You're using your own definition of 'original intent' rather than how the legal right uses it. You can tell the difference by which side is recognizing broader protections for citizens.

    You're in the area of false equivalence with the 'both sides' claim. Your example for the left does not demonstrate hypocrisy; the left respects religious freedom, but the right is hiding discrimination and denial of rights behind the phrase religious freedom. It's like saying 'my religion allows rape, so you're violating my religious freedom if you ban rape'. You also seem to be missing the important topic I mentioned of the major right-wing Federalist Society effort recruiting thousands to take over the courts.
    But that was not the way it was used. They decided it did not just mean physical documents or physically entering your property. They derived the term expectation of privacy which expands our rights against search and seizure. You are trying to politicize it by deciding which side gave greater rights when historically both the right and left have accepted the original intent that limited government's power. The right has given more rights in 1st Amendment cases and the left on 4-8 due process cases.

    I don't think the right is hiding discrimination and denial of rights but recognizing constitutional rights trump freedoms which are not actually protected rights. My comments are aimed more toward the historical use of original intent in interpreting cases and not the Federalist Society whose influence is fairly recent and hardly taking over the courts.

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    Quote Originally Posted by archives View Post
    They also didn't have a standing Army of any substance and relied upon the farmers with their weapon to answer the call if needed, my version cancels out your version
    the founders did not WANT a standing army, so I fail to see how that is relevant.

    Quote Originally Posted by archives View Post
    And no right is absolute
    show one single piece of documentation from the founding era that says this.............i'll wait.
    A sad commentary on we, as a people, and our viewpoint of our freedom can be summed up like this. We have liberals and conservatives, Democrats and Republicans, yet those very people look at Constitutionalists as radical and extreme.................so those liberals and conservatives, Democrats and Republicans must believe that the constitution is radical and extreme.

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    Quote Originally Posted by archives View Post
    Read it, the Amendment has a prefatory clause, meaning it has to be defined before you move onto the rest of the Amendment
    again, wrong. the prefatory clause has ZERO relation to the right it describes and protects. it does not say 'right of the militia'
    A sad commentary on we, as a people, and our viewpoint of our freedom can be summed up like this. We have liberals and conservatives, Democrats and Republicans, yet those very people look at Constitutionalists as radical and extreme.................so those liberals and conservatives, Democrats and Republicans must believe that the constitution is radical and extreme.

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    Quote Originally Posted by domer76 View Post
    We’ve been down this road before and you’ve proven yourself to be a constitutional idiot.

    Carried that popgun into the courthouse yet, Barney?
    show me one single piece of documentation from the framers that supports your moronic position.
    A sad commentary on we, as a people, and our viewpoint of our freedom can be summed up like this. We have liberals and conservatives, Democrats and Republicans, yet those very people look at Constitutionalists as radical and extreme.................so those liberals and conservatives, Democrats and Republicans must believe that the constitution is radical and extreme.

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    Quote Originally Posted by Flash View Post
    But that was not the way it was used. They decided it did not just mean physical documents or physically entering your property. They derived the term expectation of privacy which expands our rights against search and seizure. You are trying to politicize it by deciding which side gave greater rights when historically both the right and left have accepted the original intent that limited government's power. The right has given more rights in 1st Amendment cases and the left on 4-8 due process cases.

    I don't think the right is hiding discrimination and denial of rights but recognizing constitutional rights trump freedoms which are not actually protected rights. My comments are aimed more toward the historical use of original intent in interpreting cases and not the Federalist Society whose influence is fairly recent and hardly taking over the courts.
    Yes, that was the reasoning they used - what I said was that that's not generally what 'original intent' means as the right uses the term. The Federalist Society is absolutely taking over the courts and now controls the Supreme Court.

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    Quote Originally Posted by SmarterthanYou View Post
    show me one single piece of documentation from the framers that supports your moronic position.
    The original wording of the 2nd by Madison. Read it and weep, idiot.

    “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.''

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    Quote Originally Posted by domer76 View Post
    The original wording of the 2nd by Madison. Read it and weep, idiot.

    “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.''
    and that version wasn't ratified, or is that a concept you can't understand?
    A sad commentary on we, as a people, and our viewpoint of our freedom can be summed up like this. We have liberals and conservatives, Democrats and Republicans, yet those very people look at Constitutionalists as radical and extreme.................so those liberals and conservatives, Democrats and Republicans must believe that the constitution is radical and extreme.

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    Quote Originally Posted by Craig234 View Post
    It's popular to attack any ruling by the Supreme Court a person doesn't like as "legislating from the bench". That's probably the single most popular attack, claiming that judges are not following the constitution, just making up laws.

    There's a little secret to let anyone in on who says this: the constitution doesn't have the specific answers to almost anything. It's made to be a very non-specific set of guidelines and to leave a lot of room for society to interpret it to meet our current
    needs.

    But that doesn't mean that almost anything is allowed. It means that words need to be understood as the world changes. That there are things like the 'spirit' of the constitution that do apply to accurately following it. That's why topics like whether birth control pills can be banned - something the founding fathers neither imagined nor addressed - need to look to the larger intent of the constitution to see whether it has guidance.

    And the people who accused judge of 'inventing rights' need to be told, that there's a good chance that inventing rights is just what the constitution said to do. The 9th and 10th amendments make it clear that there are almost unlimited rights that are protected by the constitution that are not specified in it - that they were hesitant to specify any rights specifically because they didn't want other rights to lose protection by not being mentioned.

    So it's the people arguing AGAINST recognizing unspecified right who are violating the constitution, denying its demand for unspecified rights to be protected.

    But since they are unspecified, it leaves the issue open to being politicized especially easily - as it was with birth control pills. If many voters want the constitution to say something there will be politicians who agree it says that - and who appoint judged who say it does as well. Since Nixon Republicans have wanted judges who allow money to corrupt our democracy - and that's exactly what the constitution now says, according to the often 5-4 rulings saying so.

    This thread is to discuss something else, though, an example involving what rights mean.

    People like to be absolutist about rights when it suits them. But no right in the constitution is absolute. That makes people wonder, then where is the line drawn for unspecified exceptions?

    Let's use the right in the first amendment, probably the most famous in the constitution: it's stated in absolute terms, simply that "Congress shall make no law... abridging the freedom of speech". No limits or exceptions are listed.

    So doesn't that mean, no exceptions? Isn't that clear? Why do judges get to take it on themselves to just make up exceptions not listed in the constitution? Isn't that legislating from the bench and denying you your rights?

    Well, maybe it is. Early on - the second president - they did pass a law jailing people who criticized the president, John Adams, and that's a pretty clear violation. But the next president got rid of it, and it's pretty much agreed not to do that.

    So, if the right is absolute, then you have the right to:

    - Lie under oath
    - Threaten the president
    - Offer money to others to commit murder (as opposed to the act of actually paying them)
    - Describe a dangerous product as safe
    - Commit slander and libel
    - Scream profanity on public television
    - Yell fire in a crowded theater

    We could think of many more examples.

    Should all of those be legal, immune from any law limiting them (put aside the distinction of federal and state for now)?

    This is where judges come in - trying to determine how to protect the right that was meant to be protected, while not allowing abuse of the right that was not the intent. The answer to those lines is not in the constitution, as much as people with
    opinions want to say their opinion is there.

    This is where they have to determine things such as what is the most protected speech (political), and difference classes of speech (from casual to commercial and others) and appropriate protections for each, and to look at competing rights and determine which will prevail.

    And that can be done well or poorly.

    For example, in some states with a strong agricultural industry, citizens concerned about the welfare of animals can want to publish facts and pictures about harm to the animals to raise public awareness. But politiicans funded by the industry pass laws prohibiting them from doing so (they're called 'ag-gag' laws); Texas famously had a law allowing people to be sued for saying bad things about beef as I recall.

    Aren't those abuses of people's rights?

    So judges need to determine which speech is intended to be protected - such as political opinions - and which is not. And that included considering things like whether the act of burning the flag is an act in the spirit of political speech, demanding protection (it's been ruled it is, while many politicians sided with public opinion claiming the constitution does not protect that).

    It's not practical or desirable to try to write down a rule for every sentence someone can say and whether it's protected in the constitution. This is why we have a legal system and rulings to create rules as needed, and doing so is not unconstitutional, it's the very branch the constitution created to do just that.

    It is possible for judges to do that as intended and for citizens to accuse them of 'legislating from the bench'; and it's possible for judges to do it badly, to suit an agenda of their own, or powerful interests, or mobs, and get praised for it.

    That's the bottom line - the constitution means what people decide it means.

    That's not very reassuring, but it's the case. Which is why we need to have judges more than less 'impartial' trying to serve the lw rather than the political interests.

    I'd say that unfortunately, today we have the right at war with the constitution - the federalist society creates their army of lawyers and judges to reinterpret the constitution to fit their radial agenda of plutocracy. And they're getting away with it.

    But the point here was to try to help people think about what the rights in the constitution mean.

    Rights like free speech aren't going anywhere - but what they actually mean can change. And what they should mean can change as well, as we go from the society of the founding father with countless newspapers and opinions to our modern society where 'speech' of individuals is in a society of mass media controlled 90% by four mega corporations - in a time right now where free speech is affected by issues such as net neutrality.
    It seems very popular among Liberals to say let's interpret it to our times. Translated that means "the Constitution does allow us to do anything we want as long as we can justify it related to our times". Everyone knows that's what you believe. At least be honest enough to admit it.

    When the Constitution specifically says you can do things related to A, B, C, and D but those not mentioned belong to the States, saying federal judges that uphold or allow non A - D items to be done at the federal level are legislating from the bench. It's not an attack.

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    Quote Originally Posted by domer76 View Post
    The original wording of the 2nd by Madison. Read it and weep, idiot.

    “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.''
    Unless it was ratified, it can't be the original wording.

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    The right claims they can ferret out what the writers of the constitution were thinking and what their intent was. That is mental gymnastics and untrue. Scalia was a great example of a judge who appointed himself the ultimate knower of intent. It was BS.
    Last edited by Nordberg; 12-09-2017 at 11:55 AM.

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