Can a Constitution Destroy Our Rights?

[ihopehefails]

nah. the original meaning of the constitution is subjective. whether the original meaning is the perfect meaning is a highly debated opinion. fail.

OK but then who is it subjective to? It must have had a subjective meaning to the people who signed it and the meaning that they thought it had was the reason they signed it because if it had a different meaning then they would not have signed it. That signature placed it into law and at that moment thus setting that meaning in stone forever until someone alters or abolishes the constitution.

That is correct. The Constitution really isn't that subjective in its interpretation. The meanings of the document are given over to what the signers of the document understood it to mean. That is to say, if the Founders believed that the Second Amendment said a thing a certain way, that is the way we must treat it.

Yes. Its an agreement between two people or entities and an honest deal always holds up both ends of the bargain as both entities believed it meant. The text is just for the legal procedures when there is a disagreement. The agreement on paper just reflects what is in both entities had in mind and therefore the actually meaning exist in their agreed upon intentions that both sides had.

 

[antagon]

.... the justices and lawmakers have shaped its interpretation through their work. can anyone deny that? you want to say general welfare is not an ambiguous term with broad subjective potential?

the living constitution arguement is a semantic debate which could be satisfied by pointing out it is affected by the living, notwithstanding the ink and paper being inanimate.

To replace Law with an arbitary "interpretation" of law... is not law.

By your math, I could "interpret" YOU as being a cabbage. It doesn't mean you ARE a cabbage though, does it?

Either words mean something or they don't. And, as Ihopehefails points out, a contract must deal with the meaning of words at the time of the signing as an indicator that all parties involved understand their agreement thus making the agreement a legal and binding one.

And yes... the words "General Welfare" were quite ambiguous at the time. That's WHY there are many writings by the framers meant to clarify the meaning and WHY the 10th Amendment was included in The Bill of Rights. So, while those words might have been considered ambiguous before ratification, they certainly shouldn't have lost a day in ambiguity since.

"If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress.... Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America."
--James Madison

this is not madison's america, murf. anyone that paid attention in highschool knows madison can be quoted to all ends confederate and conservative. you and 'fails pose that the constitution should be treated as a contract in the light of those who enacted it, however, in that light it is an action for posterity, not for their own gain.

“The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity” - Henry Clay

i contest your position that the constitution is a contract between men of the 18th century for the benefit of men of the eighteenth century. in its exercise, it has proven to be the greatest document of its kind in history, not because of madison and his vision, but because of america, our elected officials and their's - acting rightfully through its confines.

if the constitution could not support universal education, entitlements, road and rail regs and any number of facets of our government you or j madison dont think are appropriate, the constitution wouldnt be so great at all. it would be the the charter of a lesser nation.

madison's confederacy wouldnt have made it out of the 1812, moreover the next 200 years and to the top of the world superpowers.

 

[antagon]

OK but then who is it subjective to? It must have had a subjective meaning to the people who signed it and the meaning that they thought it had was the reason they signed it because if it had a different meaning then they would not have signed it. That signature placed it into law and at that moment thus setting that meaning in stone forever until someone alters or abolishes the constitution.

That is correct. The Constitution really isn't that subjective in its interpretation. The meanings of the document are given over to what the signers of the document understood it to mean. That is to say, if the Founders believed that the Second Amendment said a thing a certain way, that is the way we must treat it.

Yes. Its an agreement between two people or entities and an honest deal always holds up both ends of the bargain as both entities believed it meant. The text is just for the legal procedures when there is a disagreement. The agreement on paper just reflects what is in both entities had in mind and therefore the actually meaning exist in their agreed upon intentions that both sides had.

see my rant on the contract analogy, and who the contract is meant to serve, above.

otherwise you guys are all assuming originalism, rather than arguing it. hop the hurdles in their order.

 

[antagon]

nah. the original meaning of the constitution is subjective. whether the original meaning is the perfect meaning is a highly debated opinion. fail.

Ihopehefails is right. If all words were subjective, there wouldn't BE a U.S. Constitution. There wouldn't be contracts. There wouldn't be laws.

The meaning of the language is well-supported by the writings of the era. Get yourself a copy of The Federalist Papers.

to continue flogging this lame contract analogy... contracts aim to restrict their interpretation through precise wording, the constitution does the opposite. contracts enumerate the parties involved very specifically, the constitution includes all americans for all time in it's optimistic charter. contracts lean on law for specific interpretation along lines of precedent, the constitution establishes a council to carry this role and set these precedents. contracts aim to establish the utmost objectivity, commonly going out of their way to make their precision absolutely clear (any and all, including but not limited to, by the parties and their assigns...), whereas the constitution offers considerable ambiguity and a mechanism enpowering persons hundreds of years later to excercise subjective (inevitably) application of its powers.

buddy, so far you and citizen have come up with the federalist papers to back your arguement. say ive been made to study those extensively, i ask 'what!?' what do light do these inferior documents shed on the markedly superior constitution. pointing out the specificities in the fed papers, only undescores the idea that the constitution was meant to be a looser belt for longer life than the papers.

 

[jillian]

Ihopehefails is right. If all words were subjective, there wouldn't BE a U.S. Constitution. There wouldn't be contracts. There wouldn't be laws.

The meaning of the language is well-supported by the writings of the era. Get yourself a copy of The Federalist Papers.

The Federalist papers are the musings of politicians and do not have the force of law... same as the declaration of independence.

Try reading Marbury v Madison. That actually IS law.

Main Menu, Marbury v. Madison, Landmark Supreme Court Cases

 

[jillian]

Where in the Constitution does it require a particular economic system?

Under Article I, Section 8, there are only 17 enumerated powers. And although the Constitution doesn't mention any specific "economic system"... I kind of doubt you'd be able to stretch those specific powers into any kind of meaningful collectivist economic system.

Once we've dispensed with the "Commerce Clause" and the "General Welfare Clause", and we have, there's not much to work with.

But you CAN'T dispense with the Commerce Clause and General Welfare Clause. Those are part of the document you profess to respect. Yet you'd do away with them.

There is a reason those things exist. And the reason shows your reading to be in error.

 

[antagon]

No one ever considers if the law gets shaped incorrectly and assumes that whatever shape it is in at any given moment in history is correct. This implies that any shape, any meaning, and any form is the correct form.

speak for yourself. i dont think that any of these assumptions are common. we ignore, skirt or break laws on the basis of the opposite: that people think the law is often bs.
we vote to change them, or the officials who enact them.

This could be correct but if so what would be the point of writing anything at all. Wouldn't it been more efficient for the writers of the constitution just to sign blank parchments and let the the living document grow over time to take whatever shape it wants.

no. instead you write article 5.

Those who wrote the constitution wrote precise words with static meanings that were meant to embody the meaning of the constitution. The meaning of those words shaped the constitution into something that the signers would want because another constitution, known as the articles of confederation, was rejected based on the meaning the words conveyed to them. They chose the current constitution based on its meaning not on what it might mean someday in the future. This makes the constitution a static document.

the commerce clause and the tax/spend clause are precisely worded to you?

the constitution charters a form of democracy, by no means was it intended to be a paper dictator.

Any yes, legal documents do get interpreted differently over time but this is done mainly because of human error and the living constitution theory seems to imply that all interpretations are correct which can't be true.

this is a strange extraction youve made that people would or could believe that anyone's mandate, even the constitution, is 'correct'. perhaps this is why youre on the founder's nuts with the presumed correct application of the constitution, however, i think that the document charters a mechanism which applies contemporary thought to lawmaking and judicial review. through this mechanism, there is considerably more consensus mandate for it at its ratification and over time.

 

[Murf76]

this is not madison's america, murf. anyone that paid attention in highschool knows madison can be quoted to all ends confederate and conservative. you and 'fails pose that the constitution should be treated as a contract in the light of those who enacted it, however, in that light it is an action for posterity, not for their own gain.

“The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity” - Henry Clay

i contest your position that the constitution is a contract between men of the 18th century for the benefit of men of the eighteenth century. in its exercise, it has proven to be the greatest document of its kind in history, not because of madison and his vision, but because of america, our elected officials and their's - acting rightfully through its confines.

if the constitution could not support universal education, entitlements, road and rail regs and any number of facets of our government you or j madison dont think are appropriate, the constitution wouldnt be so great at all. it would be the the charter of a lesser nation.

madison's confederacy wouldnt have made it out of the 1812, moreover the next 200 years and to the top of the world superpowers.

Read your own damn quote. “The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity” - Henry Clay

The words "unlimited", "undefined", "endless", and "perpetual" modify the word "posterity". They don't describe the Constitution.

Our framers weren't addressing so much the current events of their time as the nature of man. They were SPEAKING to posterity through this document.

 

[Murf76]

Try reading Marbury v Madison. That actually IS law.

I sited Marbury v. Madison just a couple of pages ago in THIS very thread.
I also pointed out that you can't very well argue a position against "unlimited government" while using the very decision which assumes the authority of judicial review for SCOTUS. Both those concepts are present in Marbury.

IOW, if it's your contention that SCOTUS is the final arbiter of what is (and what is not) constitutional... "unlimited government" comes part and parcel with it and is just as legitimate as any other portion of the decision.

 

[antagon]

this is not madison's america, murf. anyone that paid attention in highschool knows madison can be quoted to all ends confederate and conservative. you and 'fails pose that the constitution should be treated as a contract in the light of those who enacted it, however, in that light it is an action for posterity, not for their own gain.

“The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity” - Henry Clay

i contest your position that the constitution is a contract between men of the 18th century for the benefit of men of the eighteenth century. in its exercise, it has proven to be the greatest document of its kind in history, not because of madison and his vision, but because of america, our elected officials and their's - acting rightfully through its confines.

if the constitution could not support universal education, entitlements, road and rail regs and any number of facets of our government you or j madison dont think are appropriate, the constitution wouldnt be so great at all. it would be the the charter of a lesser nation.

madison's confederacy wouldnt have made it out of the 1812, moreover the next 200 years and to the top of the world superpowers.

Read your own damn quote. “The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity” - Henry Clay

The words "unlimited", "undefined", "endless", and "perpetual" modify the word "posterity". They don't describe the Constitution.

Our framers weren't addressing so much the current events of their time as the nature of man. They were SPEAKING to posterity through this document.

i understand the grammar in the quote.

it was made in the debate of the 1850 compromise where southern delegates didnt see the application of the constitution to the expanded, coast to coast territory the country had become after the spa-am war. the southerners were ready to drop their membership at the cost of war, but clay pleaded the constitution was quite handy, and exercised the art. 1 to that effect, having succeeded.

i make the same claim that the constitution is applicable to the needs of a modern government, such that these needs follow the mechanism it lays out and dont trespass its boundaries. thats why, i guess, i see the constitution as a great thing that can share in the credit of our nation's greatness, and you see it as having been usurped to the same end.

 

[Murf76]

But you CAN'T dispense with the Commerce Clause and General Welfare Clause. Those are part of the document you profess to respect. Yet you'd do away with them.

There is a reason those things exist. And the reason shows your reading to be in error.

We've already discussed the clauses as well. And still no one can give any evidence that healthcare is allowable under either of those clauses. Should we take the word of Nancy Pelosi or Steny Hoyer over James Madison's?

Even the Steward Machine Co. v. Collector decision upholding Social Security is tainted, taking Hamilton's view AFTER ratification over Madison's view during, or even Hamilton's himself in Federalist No. 83. Thin stuff, that.... and made at a time when FDR was openly coercing the court.

 

[Murf76]

it was made in the debate of the 1850 compromise where southern delegates didnt see the application of the constitution to the expanded, coast to coast territory the country had become after the spa-am war. the southerners were ready to drop their membership at the cost of war, but clay pleaded the constitution was quite handy, and exercised the art. 1 to that effect, having succeeded.

i make the same claim that the constitution is applicable to the needs of a modern government, such that these needs follow the mechanism it lays out and dont trespass its boundaries. thats why, i guess, i see the constitution as a great thing that can share in the credit of our nation's greatness, and you see it as having been usurped to the same end.

Well, give us the constitutional authority for an "individual mandate" and the government seizure of our medical records then. How exactly is it that these things don't "trespass its boundaries"?

I see the constitution as a great thing that caused our nation's greatness. And I see the previous depredations upon it as currently causing our problems. Social Security is upside down THIS YEAR, not 2019 like they thought. The interest on our debt, without Obamacare factored in, will be 799 BILLION dollars annually in ten years time. So... exactly how "great" has all that social spending made us?

 

[Contumacious]

And still no one can give any evidence that healthcare is allowable under either of those clauses.

You missed one founding Father:

"The proletariat will use its political supremacy to wrest, by degree, all capital from the bourgeoisie, to centralize all instruments of production in the hands of the state…"

Karl Marx

.

 

[jillian]

We've already discussed the clauses as well. And still no one can give any evidence that healthcare is allowable under either of those clauses. Should we take the word of Nancy Pelosi or Steny Hoyer over James Madison's?

Even the Steward Machine Co. v. Collector decision upholding Social Security is tainted, taking Hamilton's view AFTER ratification over Madison's view during, or even Hamilton's himself in Federalist No. 83. Thin stuff, that.... and made at a time when FDR was openly coercing the court.

You do understand that your parsing of the specific words isn't really as relevant as the caselaw on the subject which does far deeper analysis. And you don't have to take nancy pelosi's words over james madison's. but neither is enforceable as law. see how that works.

and i'm afraid that your view that the decision is "tainted" is pretty unpersuasive. reality is that roosevelt didn't pack the court and the court wasn't "coerced". and the cases are still good law.

oh..and in response to your earlier comment. i respond to the posts i respond to. i may or may not look at earlier posts.

and if you read marbury... you didn't understand it. that's ok though.. they devote weeks to it in con law classes.

 

[JakeStarkey]

And still no one can give any evidence that healthcare is allowable under either of those clauses.

You missed one founding Father:

"The proletariat will use its political supremacy to wrest, by degree, all capital from the bourgeoisie, to centralize all instruments of production in the hands of the state…"

Karl Marx.

I understand the Communists had no mercy on pedophiles. Good for them.

 

[Murf76]

You do understand that your parsing of the specific words isn't really as relevant as the caselaw on the subject which does far deeper analysis. And you don't have to take nancy pelosi's words over james madison's. but neither is enforceable as law. see how that works.

and i'm afraid that your view that the decision is "tainted" is pretty unpersuasive. reality is that roosevelt didn't pack the court and the court wasn't "coerced". and the cases are still good law.

oh..and in response to your earlier comment. i respond to the posts i respond to. i may or may not look at earlier posts.

and if you read marbury... you didn't understand it. that's ok though.. they devote weeks to it in con law classes.

Case law can be overturned by any later SCOTUS which decides it another way. The Constitution can only be amended, and that, through a specific process.

And petty insults aside, I see very well that Marbury sites a limited government approach along with its assumption of the power of judicial review. These are either BOTH valid, or BOTH insufficient.

 

[Contumacious]

and i'm afraid that your view that the decision is "tainted" is pretty unpersuasive. reality is that roosevelt didn't pack the court and the court wasn't "coerced". and the cases are still good law..

HUH?

A year earlier the SCOTUS ruled that fedgov had no authority to operate a welfare state:

U.S. Supreme Court
U.S. v. BUTLER, 297 U.S. 1 (1936)

 

[jillian]

Case law can be overturned by any later SCOTUS which decides it another way. The Constitution can only be amended, and that, through a specific process.

And petty insults aside, I see very well that Marbury sites a limited government approach along with its assumption of the power of judicial review. These are either BOTH valid, or BOTH insufficient.

Yes caselaw can be overturned. It is not done often though.... certainly who sits on the court matters philosophically. I think we all know that. And each "side" things the judges on the other "side" are activits.

It's been a while since I read Marbury. But I hae no recollection of it standing for the proposition of any particular size government. In fact, that issue, if addressed at all, would have been dicta and without precedential value. The proposition Marbury stood for was that the Court is the final arbiter of what is constitutional.

and there wouldn't have been insults, petty or otherwise, but for your dig and

so let's see if we can avoid that kind of thing in the future.

 

[antagon]

Well, give us the constitutional authority for an "individual mandate" and the government seizure of our medical records then. How exactly is it that these things don't "trespass its boundaries"?

well, first we'd need a law putting that authority in fed hands.

but ill play along... anything i heard or read about the obamacare prop makes the mandate tax-enforced, not criminal, silly. there's still a bit of freedom as proposed...

so your answer is in art.1.8 or the 16th amendment.

i dont know what you mean with the medical records thing.

I see the constitution as a great thing that caused our nation's greatness. And I see the previous depredations upon it as currently causing our problems. Social Security is upside down THIS YEAR, not 2019 like they thought. The interest on our debt, without Obamacare factored in, will be 799 BILLION dollars annually in ten years time. So... exactly how "great" has all that social spending made us?

*snif* so i see youve opened a broader can of government than the constitution alone.

2019, now sooner, i think 2015 or something, is an allusion to the insolvency of the fund, not the year-on-year balance you must be referring to. social spending is among plenty that has improved the US, through the economy and society. it is expensive and appropriated more and differently than i care for for certain, or that i think is sustainable.

thats my point in this debate: that putting your foot down with the constitution wont prove as effective as cultivating government leadership and being or voting for people with a mind to affect the right formula for government within the constitution's framework.

by no means am i on board with every application of the powers of government, but hoping the constitution is going to champion political issues like obamacare is fruitless. take that tack, wait and see. its more about having an opposing view that is credible.

republican's credibility has been dashed by the bush era and campaigns like mccain's, all they might have to cling on in the obamacare example is the constitution. i digress to my point on the fruits of that tack. in november, we could see if theyve done their homework, or if theyre still mired in ignorant teabag-grade politics. we will see if they could bring some balance back into govt so as to demonstrate the real means by which government is shaped.

right now, the democrats have the run of the place and are working like they expect a '94 in november.

 

[Murf76]

Well, give us the constitutional authority for an "individual mandate" and the government seizure of our medical records then. How exactly is it that these things don't "trespass its boundaries"?

well, first we'd need a law putting that authority in fed hands.

but ill play along... anything i heard or read about the obamacare prop makes the mandate tax-enforced, not criminal, silly. there's still a bit of freedom as proposed...

so your answer is in art.1.8 or the 16th amendment.

i dont know what you mean with the medical records thing.

We'd call that law... a Constitutional Amendment.

The "tax" argument doesn't wash. It's not an income tax. And it's not an excise tax; there's no transaction. This would be a direct tax without apportionment if anything at all. The TRUTH is... that it's a penalty, designed to force citizens into private insurance pools. And honest persons wouldn't equivocate about that.

I have no idea how old you are, but it's young people who seem most supportive of this bill, most likely on the assumption that they'll all be subsidized. But... the rug gets pulled out from under them just as soon as they're actually making any cash in their careers. As soon as they start getting ahead, they'll find themselves subsidizing the babyboomers.

So I don't understand why young folks buy into this mess. Not only are they pushed into the insurance pool, will ye nill ye... they're economically enslaved by the burden of national debt. Do you honestly think we're going to come up with the equivalent of a new Porkulus package out-of-pocket ANNUALLY without huge tax burdens? Seriously, think about it. We're sending 700 billion overseas in energy costs, and Congress doing NOTHING to address it save slipping cash to their own cronies. We've got entitlement spending already chewing its way through our budget, and the plan is... make it worse?


In reference to medical records, btw. That's the Comparative Effectiveness Research that they slipped into the Porkulus bill. It requires our medical records to be databased by 2014 in a fairly transparent attempt to set the framework for a rationing system similar to Britain's HOPE system... although they most certainly deny it. Their claim is that electronic records make for less administrative costs, prevent medical mistakes, and allows for the effectiveness of various drugs and treatments to be categorized.

None of which makes sense, because we're asked to believe that the cost of creating, maintaining, and providing security contracts is less than paper and ink. We're asked to believe that an army of minimum-wage data entry clerks are more responsible than doctors making notes. And we're asked to believe that our most intimate information won't be used to regulate our choices.

And this was done without a peep from Democrats, the self-same ones who routinely complain about the constitutionality of the Patriot Act. The most intimate workings of your body, available to whatever bureaucrat Congress wants to put in charge of it, is somehow not a violation of The Bill of Rights???

Now, how does THAT get past the 4th?... the 5th, 9th, or 10th for that matter? Today, a government official would need a WARRANT if they wanted a peek at your medical record. In 2014, they won't. How is this not a property rights issue? Whether one argues that a medical record is the property of the doctor or of the patient, the one thing is most assuredly is NOT... is the property of the U.S. government.

I see the constitution as a great thing that caused our nation's greatness. And I see the previous depredations upon it as currently causing our problems. Social Security is upside down THIS YEAR, not 2019 like they thought. The interest on our debt, without Obamacare factored in, will be 799 BILLION dollars annually in ten years time. So... exactly how "great" has all that social spending made us?

*snif* so i see youve opened a broader can of government than the constitution alone.

2019, now sooner, i think 2015 or something, is an allusion to the insolvency of the fund, not the year-on-year balance you must be referring to. social spending is among plenty that has improved the US, through the economy and society. it is expensive and appropriated more and differently than i care for for certain, or that i think is sustainable.

thats my point in this debate: that putting your foot down with the constitution wont prove as effective as cultivating government leadership and being or voting for people with a mind to affect the right formula for government within the constitution's framework.

by no means am i on board with every application of the powers of government, but hoping the constitution is going to champion political issues like obamacare is fruitless. take that tack, wait and see. its more about having an opposing view that is credible.

republican's credibility has been dashed by the bush era and campaigns like mccain's, all they might have to cling on in the obamacare example is the constitution. i digress to my point on the fruits of that tack. in november, we could see if theyve done their homework, or if theyre still mired in ignorant teabag-grade politics. we will see if they could bring some balance back into govt so as to demonstrate the real means by which government is shaped.

right now, the democrats have the run of the place and are working like they expect a '94 in november.

Social Security is eating INTO the fund. It wasn't supposed to do that until 2019, which means we're on track for insolvency much sooner than previously anticipated. Ed Morrissey has the charts and links:
Hot Air » Blog Archive » Social Security deficit slides to worst showing in a generation

I don't understand your comment about "not putting your foot down" though. It seems reflective of a type of political apathy which, while pervasive, doesn't serve our interest as Americans. 'We the People' are SOVEREIGN. They work for us, not the other way around. We have a guaranteed right to speak out that cannot be denied. We have a right to actual representation from our duly elected "representatives". "No taxation without representation", remember?

Barack Obama isn't a King. And this Congress isn't some sort of royal court that can issue random decrees. Every last one of them took a solemn oath to uphold our Constitution. For what reason should we be expected to sit around WAITING until we can elect a new King and a new royal court in the hopes that they'll somehow be different??

These people are NOT above the Law.