Rereading the Constitution

Discussion in 'Current Events' started by Texanmike, Aug 24, 2011.

  1. Texanmike
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    Texanmike Active Member

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    OK. So recent discussions have prompted me to reconsider what I think about the Constituiton. I figure I'll just post it here rather than in a thread because I think it warrants further study. I don't want to get into a debate about right or wrong but I would appreciate any references someone might have. I'm not looking at case law or settled law because I believe it is flawed. I dont' want to know what some judge 200 years later thought that something meant, I want to know what the Authors actually meant. I am aware that there are people who believe this is not a worthy cause, if you are of that opinion, please keep it to yourself or start your own thread. I just want to study what is Constitutional and what isn't. I am prejudiced, of course, because this isn't the first time I've done it. I am not prejudiced by issues though, just by procedure and the limitations and provisioned within the Constitution. Well, here goes nothing....

    Mike
     
  2. Texanmike
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    Texanmike Active Member

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    First, lets remember what the Constitution is, and then what the Amendments are as an extension of the Constitution.
    The Constitution is a contract between the states. It outlines what powers the states are going to cede to a larger, central government. The states, upon ratification, agreed to forego their authority in very limited cases. Amendments are nothing more than additions to, subtractions from, or modifications of that contract.
    Remember that after the Contract was ratified, and as a term of ratification, the states were guaranteed that amendments would be passed to further reduce the abilities of the federal government. If you're unfamiliar with it, look at the debates between Randolph and Henry. Henry, who's 'give me liberty or give me death' speech might be the least of his contributions to the United States was, at the time, the greatest champion of the modifications. He championed the cause form day one and it is because of his efforts and his speeches that we have the Bill of Rights. For him, the inclusion of the 10th amendment was paramount to the existence of the Union.
    Now look at the construct of the bill of rights. They fall into two categories, the limitations on federal authority and the limitations on government authority at all levels.
    The first category, the Protection from the federal government, comes in the form of the first Amendment:
    In this instance the states are agreeing that the federal government will not have the power to do certain things. The powers that the federal government will not have are listed in one Amendment.
    The second category includes the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Amendments:
    The construction of all of these Amendments is such that they do not limit the level of government to which they apply. “Shall not be infringed”, “No Soldier shall”, “The right of the people “Shall not be violated”, “No person shall be held”, “the accused shall enjoy”, “the right of trial by jury shall” and “no fact tried by a jury, shall be otherwise re-examined in any court”, Excessive bail shall not be required”, “Certain rights shall not”. There are not limitations to city, state or federal government; these are the bill of rights as defined by the states. In contrast to the first amendment, which is actually a reservation of the states power (see Henry debating Randolph), these amendments apply to every level of government. It should be clear (and becomes more so as I read the accounts I can find in the individual states) that the design of the amendments was to specifically keep the federal government out of the state’s business. Randolph, a federalist, makes the following statement:
    What this does is give understanding of the meaning of the 10th amendment and all of the amendments. It shows what the words meant at the time it was written… and not by those that espoused the smaller central government, but those that were proponents of the larger federal government. Even in the opinion of Edmund Randolph, as he sold the idea of ratification to the anti-federalists and to the people, the rights of the people and the states remained with them unless they were specifically granted to the federal government. I’m not going to quote the entire debate but if you’re interested I suggest you read it. Randolph vs Henry gives great insight into the opinions of the framers from both sides.


    To be continued...
    Mike
     
  3. PoliticalChic
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    PoliticalChic Diamond Member

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    Welcome to the board, Mike.

    I like the subject you chose, and it certainly is worthy.

    But, "I dont' want to know what some judge 200 years later thought that something meant, I want to know what the Authors actually meant."

    One of the books that I am currently reading, "Originalism: A Quarter-Century of Debate," Calabresi and Scalia, makes the following point:
    "...technically it is the words of the Constitution that are law, and not the intentions of those who wrote the document, that are the supreme law of the land. The original public meaning of the Constitution's words as revealed in old dictionaries is certainly law, but there is no reason to think that the un-enacted, idiosnycratic intentions of particular Framers are law....There is a difference between legislative history and law. Only the constitutional text that was ratified can be called law." p. 14-15.

    I look forward to your posts.
     
  4. konradv
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    konradv Gold Member

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    "What the authors actually meant" presumes they all meant the same thing. The Constitution is purposely broad and vague in parts, because there's no such thing as "original intent", rather "original intentS". What's important isn't adherence to 18th century modes of reasoning, but those based on the time in question. Jefferson said it better than I ever could.

    I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors

    Inscribed on the Jefferson Memorial
     
  5. Texanmike
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    Texanmike Active Member

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    Thanks. With regards to original intent vs technical wording, I agree. When I'm talking about the original intent saying to look at the words in the context of the times. I agree that what was ratified is law but it is still possible to consider original intent when reviewing the contract. The goal of this is not to find a way to twist a word here or there to mean something the Constitution was never meant to say, but rather to figure out, with the use of old dictionaries (I owen 2 from the 1790's and one from 1803) what the words did mean at the time.

    If we turn the constitution into a never ending game of telephone, or if we are able to change the meaning of words, does that change the role/authority of government in our lives? Can someone engineeer a campaign to change the lexical surface of a document and circumvent the meaning of the document itself?

    What I mean by original intent, is, for example... look at the First and the Fourteenth Amendments. Duid the states ratify something that allowed the federal government more involvement in the lives of the individual communities? Was it intended to apply the First Amendment to the states? How can you apply a "right" that starts off with "Congress shall make no law" to the states?

    I'm (and I hope not offensively) not looking for Scallia's interpretation, or anyone else for that matter, because we are all looking back 200 years. The answer, I believe, will lie in the 200 year old books, and public records that tell us what the Constition was meant to be. I don't think that we will ever restore it to its original intent, but I want to know what the FF wanted ust to have, not the bastardized watered down version of what people with different agendas decades and centuries later want to use it for. I do think it is possible to determine from the context of the times, the original intention of the words crafted. That means that I cannot insert my own ideas, morals or wishes into my reading.

    Mike
     
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  6. OohPooPahDoo
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    OohPooPahDoo Gold Member

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    The authors often had conflicting intents for the same part of the Constitution. Take the debate between Madison and Hamilton over the General Welfare clause. BOTH men were authors of the Constitution - yet they had opposing opinions on the meaning of that clause. In such cases the only way to ultimately settle the difference is through the courts.
     
  7. CryingKoala
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    Plus original intent is not always relevant to how the Constitution needs to be interpreted. SCOTUS acts because it has a conflict before it where a Constitutional issue needs to be decided. Whatever decision it makes, it has to be done in context of the matter brought before them. They cannot issue advisory opinions.

    It doesn't matter whether you prefer "original intent" or the the judge's ruling. Only one will resolve the case or have any real world application. SCOTUS's opinion is the only one which can use the Constitution in a way which has relevance here and now.

    Also the idea of divining original intent of the Constitution is a fools errand. The Founders were not always of one mind on how to interpret any given part. The text allows room for modern interpretation and if it is to be relevant it has to be seen in such a way. It is not Bible Study. It is more than mere academic debate because the Constitution has to be applied in a real world setting. The Judiciary is the only branch which can do this effectively. Congress can only deal with laws in hypothetical future tense. They do not bear the responsibility as to how a law is implemented once its passed.

    SCOTUS is always dealing in the present. They always have to interpret the laws in light of actual situations which require some form of remedy.
     
  8. Texanmike
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    Texanmike Active Member

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    The bolded is exactly the opposite of what I believe. The Constitution was not written to be interpreted as need be, it is written to define the construct of the government. There are some basic fundamental rights which the states all agree should be universal. The question of "is it Constitutional" is not a question of "is it right or wrong", it seems to be from everything I've read, a question of does the entity that wrote the law have the authority to write such a law.

    The "modern interpretation" is what I have a problem with. Congress shall make no law... The "shall and shall not". They see self explanatory and don't seem like they are open to modern interpretation if you ask me.

    The bigger question I have now is, what is the purpose of putting restrictions on what a government may or may not do if you believe those restrictions change as society evolves without ever voting on these changes?

    Mike
     
  9. Ernie S.
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    Ernie S. Platinum Member

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    The Constitution needs to be interpreted as written, not as political appointees feel it should be. If enough people feel it needs to be interpreted differently, there is a process to amend it.
     
  10. Salt Jones
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    Salt Jones BANNED

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    I agree. Do originalist feel the same way about the bible?
     

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