Today's lesson in the constitution

[Craig234]

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.

[Flash]

Craig234, great post until you got to that part about the "right" getting away with interpreting the Constitution to meet their agenda. The left does the same thing as has certainly had greater success at changing the meaning as the right has. Both sides have the same freedom and right to file suits attempting to influence the meaning of the document.

The left often criticizes the concept of original intent but that is the source for determining what should be included in free speech protections. It was using original intent that determined speech was meant to include discussions of public issues and exclude threats, slander......

[Craig234]

Craig234, great post until you got to that part about the "right" getting away with interpreting the Constitution to meet their agenda. The left does the same thing as has certainly had greater success at changing the meaning as the right has. Both sides have the same freedom and right to file suits attempting to influence the meaning of the document.

The left often criticizes the concept of original intent but that is the source for determining what should be included in free speech protections. It was using original intent that determined speech was meant to include discussions of public issues and exclude threats, slander......

Thanks for the first comment; on the second, we can discuss the right and left, as I clearly said the right does what it does, but you need to do more than just say 'the left does it also', as I did with the right; you need to be specific and prove your claim.

The concept of 'original intent' is primarily propagandistic - it's selectively applied as a way to justify certain interpretations by the right and claim they're the valid positions.

It also does not allow for all kinds of changes in society, from new technology to new issues (like my example of the different media industry or the internet) to changes like the equality of race, gender, and sexual orientation.

So do we apply the 'spirit' of the rule, such as equal rights under the law applying to more groups as we recognize their equality, or do we limit it to the groups not discriminated against when it was passed in the name of 'original intent'?

How do you rule on the government having the right to ban birth control pills, for example, under 'original intent'? The answer isn't spelled out in the constitution, and 'original intent' doesn't change that.

[domer76]

Craig234, great post until you got to that part about the "right" getting away with interpreting the Constitution to meet their agenda. The left does the same thing as has certainly had greater success at changing the meaning as the right has. Both sides have the same freedom and right to file suits attempting to influence the meaning of the document.

The left often criticizes the concept of original intent but that is the source for determining what should be included in free speech protections. It was using original intent that determined speech was meant to include discussions of public issues and exclude threats, slander......

The right loves “original intent” until it no longer suits their purpose. The 2nd is a perfect example, as the original intent was in the context of a militia, not unlimited personal possession.

[ThatOwlWoman]

The right loves “original intent” until it no longer suits their purpose. The 2nd is a perfect example, as the original intent was in the context of a militia, not unlimited personal possession.

Thanks, just what I was going to say, but you said it better.

[archives]

The right loves “original intent” until it no longer suits their purpose. The 2nd is a perfect example, as the original intent was in the context of a militia, not unlimited personal possession.

Always had a problem with the whole originalist theory, you pointed out a good example, they put aside the precedents of two hundred of Supreme Court rulings on the Amendment when they decided to just skip over the prefatory clause

[Flash]

The right loves “original intent” until it no longer suits their purpose. The 2nd is a perfect example, as the original intent was in the context of a militia, not unlimited personal possession.

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.

[Flash]

Always had a problem with the whole originalist theory, you pointed out a good example, they put aside the precedents of two hundred of Supreme Court rulings on the Amendment when they decided to just skip over the prefatory clause

But it didn't prevent any regulations except the complete ban in D. C. Making the 2nd applicable to the states was a much broader decision.

[SmarterthanYou]

But no right in the constitution is absolute.

this is where almost all of you screw shit up royally. The founders had just won independence from an oppressive regime with a king that made rules and laws willy nilly. One of the most important things the founders intended when writing and ratifying the constitution/bill of rights was to ensure that government KNEW they had limits and restrictions that they had no power or authority over. Claiming that 'no right is absolute' overturns that restriction and limitation of the government and you do it all in cowardice so you can 'feel' safe.

[SmarterthanYou]

The right loves “original intent” until it no longer suits their purpose. The 2nd is a perfect example, as the original intent was in the context of a militia, not unlimited personal possession.

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.

[archives]

this is where almost all of you screw shit up royally. The founders had just won independence from an oppressive regime with a king that made rules and laws willy nilly. One of the most important things the founders intended when writing and ratifying the constitution/bill of rights was to ensure that government KNEW they had limits and restrictions that they had no power or authority over. Claiming that 'no right is absolute' overturns that restriction and limitation of the government and you do it all in cowardice so you can 'feel' safe.

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

And no right is absolute

[Flash]

Thanks for the first comment; on the second, we can discuss the right and left, as I clearly said the right does what it does, but you need to do more than just say 'the left does it also', as I did with the right; you need to be specific and prove your claim.

The concept of 'original intent' is primarily propagandistic - it's selectively applied as a way to justify certain interpretations by the right and claim they're the valid positions.

It also does not allow for all kinds of changes in society, from new technology to new issues (like my example of the different media industry or the internet) to changes like the equality of race, gender, and sexual orientation.

So do we apply the 'spirit' of the rule, such as equal rights under the law applying to more groups as we recognize their equality, or do we limit it to the groups not discriminated against when it was passed in the name of 'original intent'?

How do you rule on the government having the right to ban birth control pills, for example, under 'original intent'? The answer isn't spelled out in the constitution, and 'original intent' doesn't change that.

I think the concept of original intent has been much more useful than you suggest. For example, technological changes in electronic surveillance made it unnecessary to actually enter your property for search and seizure. The court reasoned original intent was to protect your privacy leading to greater 4th Amendment protections. Original intent has been particularly useful in 1st Amendment protections. And, although my memory is vague, it was used in the 14th same sex marriage case, Roe, 6th right to counsel, and many others.

I could give several examples of both the left and right being hypocritical and basing their evaluation of a court decision on the outcome they liked rather than the legal argument, but I didn't think that was the topic of conversation. A recent example of the right is a new law (not sure if it passed yet) that would require states to honor the right to carry license from other states. That seems to go against the states' rights argument of conservatives but they like the result. Both sides are hypocrites about filibusters on judicial nominees because they argue how it protects minorities when it is blocking the other side but thwarting majority rule when it blocks their side. The left champions free religion when it exempts a person from requirements to say the pledge, display offensive license plate slogans, use drugs, or avoid military service, but not when it protects Hobby Lobby.

[archives]

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.

Read it, the Amendment has a prefatory clause, meaning it has to be defined before you move onto the rest of the Amendment

[archives]

I think the concept of original intent has been much more useful than you suggest. For example, technological changes in electronic surveillance made it unnecessary to actually enter your property for search and seizure. The court reasoned original intent was to protect your privacy leading to greater 4th Amendment protections. Original intent has been particularly useful in 1st Amendment protections. And, although my memory is vague, it was used in the 14th same sex marriage case, Roe, 6th right to counsel, and many others.

I could give several examples of both the left and right being hypocritical and basing their evaluation of a court decision on the outcome they liked rather than the legal argument, but I didn't think that was the topic of conversation. A recent example of the right is a new law (not sure if it passed yet) that would require states to honor the right to carry license from other states. That seems to go against the states' rights argument of conservatives but they like the result. Both sides are hypocrites about filibusters on judicial nominees because they argue how it protects minorities when it is blocking the other side but thwarting majority rule when it blocks their side. The left champions free religion when it exempts a person from requirements to say the pledge, display offensive license plate slogans, use drugs, or avoid military service, but not when it protects Hobby Lobby.

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

[Craig234]

I think the concept of original intent has been much more useful than you suggest. For example, technological changes in electronic surveillance made it unnecessary to actually enter your property for search and seizure. The court reasoned original intent was to protect your privacy leading to greater 4th Amendment protections. Original intent has been particularly useful in 1st Amendment protections. And, although my memory is vague, it was used in the 14th same sex marriage case, Roe, 6th right to counsel, and many others.

I could give several examples of both the left and right being hypocritical and basing their evaluation of a court decision on the outcome they liked rather than the legal argument, but I didn't think that was the topic of conversation. A recent example of the right is a new law (not sure if it passed yet) that would require states to honor the right to carry license from other states. That seems to go against the states' rights argument of conservatives but they like the result. Both sides are hypocrites about filibusters on judicial nominees because they argue how it protects minorities when it is blocking the other side but thwarting majority rule when it blocks their side. The left champions free religion when it exempts a person from requirements to say the pledge, display offensive license plate slogans, use drugs, or avoid military service, but not when it protects Hobby Lobby.

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.