Justice Scalia: 'Constitution is not a living organism'

[M.D. Rawlings]

The ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that Scalia’s majority opinion in Heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, I agree with Scalia’s ruling in Heller, he made a compelling and successful argument using primary documents and sources from the Foundation Era as the Framers were in essence silent on the issue; where Scalia contrived the doctrine of how Americans perceived the Second Amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the Amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And I accept Heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the Supreme Court to indeed determine what the Constitution means, as originally intended by the Framers.

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Another leftist who imagines that the Framers' understanding of reality, the realities of human nature and the imperatives of natural law are no longer valid . . . have somehow faded away--magic!--under the sway of some indefinable whim of modernity, which, in fact, in the final analysis, is nothing more than the relativist baby talk of some imposed on everyone else, statist expediency parading as pragmatism, as old as mankind and still just as deadly.

 

[PoliticalChic]

The ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that Scalia’s majority opinion in Heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, I agree with Scalia’s ruling in Heller, he made a compelling and successful argument using primary documents and sources from the Foundation Era as the Framers were in essence silent on the issue; where Scalia contrived the doctrine of how Americans perceived the Second Amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the Amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And I accept Heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the Supreme Court to indeed determine what the Constitution means, as originally intended by the Framers.

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Not the intent.

The meaning of the words.



1. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’
“Originalism,” Steven Calabresi, p. 263.

 

[dblack]

the ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that scalia’s majority opinion in heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, i agree with scalia’s ruling in heller, he made a compelling and successful argument using primary documents and sources from the foundation era as the framers were in essence silent on the issue; where scalia contrived the doctrine of how americans perceived the second amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And i accept heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the supreme court to indeed determine what the constitution means, as originally intended by the framers.

the irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

another leftist who imagines that the framers' understanding of reality, the realities of human nature and the imperatives of natural law, are no longer valid . . . Have somehow faded away--magic!--under the sway of some indefinable whim of modernity, which, in fact, in the final analysis, is nothing more than the relativist baby talk of some imposed on everyone else, statist expediency parading as pragmatism, as old as mankind and still just as deadly.

wtf???

 

[JakeStarkey]

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Why would we want 18th century aristocrats making decisions on what a 21st century society should do?

Because that's what the contract says, don't like it, get out there and amend it, but don't just try to ignore it, I nor millions of others will agree to that.

The contract has been amended 27 times and thousands of times by federal courts.

OK, understand: the government and the overwhelming number of We the People don't care if you agree or not.

Choices have consequences, pard.

 

[M.D. Rawlings]

No, that is why we have Article V, to amend the Constitution.

Nonsense.

The ‘amendment process’ was never intended to address every conflict and controversy that manifests in society; in fact, it’s wholly unsuited to bring a resolution to the vast majority of issues that come before the courts – again, to attempt to do so would litter the Constitution with thousands of ‘amendments’ rendering it unworkable.

Moreover, it would violate each American’s First Amendment right to petition the government for a redress of grievances and each American’s Fifth Amendment right to due process of the law by seeking relief before the Federal courts.

Clayton, sorry to nitpick your grammar, but you keep omitting the colon after the word Nonsense that precedes your posts.

Actually most any word can stand alone in the form of a sentence to make a point in informal writing or literary works. It's perfectly acceptable, and when used correctly, as Jones does, at least in terms of literary grammar, it can be quite effective, sometimes eloquent.

The only problem with Jones' point is that he's trying to refute a sound observation with . . . well, you know. . . .

Nonsense.

 

[bripat9643]

The ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that Scalia’s majority opinion in Heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, I agree with Scalia’s ruling in Heller, he made a compelling and successful argument using primary documents and sources from the Foundation Era as the Framers were in essence silent on the issue; where Scalia contrived the doctrine of how Americans perceived the Second Amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the Amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And I accept Heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the Supreme Court to indeed determine what the Constitution means, as originally intended by the Framers.

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Why would we want 18th century aristocrats making decisions on what a 21st century society should do?

In other words, totally ignore the Constitution? Is that really what you wanted to say?

BTW, I'll take the wisdom of an 18th Century aristocrat over the decisions of a numskull like you any day of the week. The claim that democracy produces superior results has been discredited too many times to count.

 

[JakeStarkey]

Because that's what the contract says, don't like it, get out there and amend it, but don't just try to ignore it, I nor millions of others will agree to that.

The contract has been amended 27 times and thousands of times by federal courts.

OK, understand: the government and the overwhelming number of We the People don't care if you agree or not.

Choices have consequences, pard.

Well fakey you're the kind of person I swore to protect our Constitution against, a domestic enemy and the death of people like you are as justified as any terrorist, because your intent to destroy this country is the same. There's a breaking point coming and may not be as far off as one might think.

Well, Tigger, as a real oath keeper (I served twelve years active duty), I am not concerned about domestic terrorists like you threatening me. You are hot air, nothing more.

The Constitution is well defended from you and yours.

 

[M.D. Rawlings]

The ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that Scalia’s majority opinion in Heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, I agree with Scalia’s ruling in Heller, he made a compelling and successful argument using primary documents and sources from the Foundation Era as the Framers were in essence silent on the issue; where Scalia contrived the doctrine of how Americans perceived the Second Amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the Amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And I accept Heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the Supreme Court to indeed determine what the Constitution means, as originally intended by the Framers.

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Not the intent.

The meaning of the words.



1. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’
“Originalism,” Steven Calabresi, p. 263.

Precisely! Excellent post. If I weren't already in love, I could easily fall in love with you, PoliticalChick.

And, ultimately, that's why the decision in Employment Division v. Smith, for example, is a bit shaky . . . even though the outcome is essentially correct, insofar as it avoided the issue of religious liberty relative to the possession and use of an illegal substance on religious grounds, and protected the respective business interest from having to pay out compensation for "the privilege of asserting" an inherent right in the event it had to disassociate itself from an employee using a mind-altering substance or being under the influence of the same on the job.

(Lefty has a bad habit of forgetting who actually has to cough up the cash from a pool of reserves, which has to be replenished, in such instances. It's never the government's money.)

But the underlying principles of concern in this case could have been readily based on an existing line of stare decisis in case law precisely suited to the majority's ultimate design, which included terms and judicial constructs whose meanings were already well-established, and, therefore, the majority could have accomplished its righteous goal in a direct, uncomplicated fashion. Thusly, the religious practices of the plaintiff need not to have been mentioned at all.

Together, established meaning and the immediate practice thereof (which include the historical essences of both) are the essence of accurately applying constitutional and natural law, the surest guide for any line of stare decisis.

See links:

http://www.usmessageboard.com/polit...-is-not-a-living-organism-13.html#post8780987

http://www.usmessageboard.com/polit...-is-not-a-living-organism-13.html#post8780684

 

[Wry Catcher]

The ultimate irony of this thread, of course, as well as the ultimate hypocrisy of conservatives, is that Scalia’s majority opinion in Heller is the epitome of judicial interpretation – where he fabricated out of whole cloth the right to self-defense and the individual right to possess a handgun pursuant to the right of self-defense.

Now, I agree with Scalia’s ruling in Heller, he made a compelling and successful argument using primary documents and sources from the Foundation Era as the Framers were in essence silent on the issue; where Scalia contrived the doctrine of how Americans perceived the Second Amendment right at the time of its ratification. But his ruling was nonetheless interpretation, where from the text of the Amendment alone there is no evidence as to a right to self-defense or an individual right to possess a firearm.

And I accept Heller as settled and acknowledged precedent because the doctrine of judicial review authorizes the Supreme Court to indeed determine what the Constitution means, as originally intended by the Framers.

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Not the intent.

The meaning of the words.



1. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’
“Originalism,” Steven Calabresi, p. 263.

I see. And what was the exact meaning of the word "arms", in as to "keep and bear arms"?

 

[M.D. Rawlings]

the irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

another leftist who imagines that the framers' understanding of reality, the realities of human nature and the imperatives of natural law, are no longer valid . . . Have somehow faded away--magic!--under the sway of some indefinable whim of modernity, which, in fact, in the final analysis, is nothing more than the relativist baby talk of some imposed on everyone else, statist expediency parading as pragmatism, as old as mankind and still just as deadly.

wtf???

Exactly! You don't know and you don't understand what most educated conservatives/libertarians do at a glance. One cannot properly understand and faithfully apply constitutional law relative to the Republic's founding ethos to the everyday concerns and challenges of life without knowing and understanding the natural law of the Anglo-American tradition harking back to Augustine and perfected by Locke.

Jonesey, by sheer accident to be sure, accurately alludes to the people's general understanding of the Second Amendment at the time of the Constitution's impending ratification. They knew, indeed, lived and breathed, Lockean natural law. For decades, Americans lived and breathed it. Americans knew who John Locke was and celebrated him as the father of classical liberalism and the preeminent sage of the sociopolitical theory on which the Republic was founded.

And then the Twentieth Century happened, and the public education system happened, "progressives" like Wilson happened and the 16th Amendment happened. . . . And folks fell into a deep slumber.

But I'm talking to a wall, I know.

Sadly, too many conservatives have lost touch with it too, at least in terms of its academics, as they apprehend it and practice it by keen instinct. That's why it's called natural law.

On the other hand, you leftists are utterly clueless.

 

[JakeStarkey]

One cannot properly understand and faithfully apply constitutional law relative to the Republic's founding ethos to the everyday concerns and challenges of life without knowing and understanding the natural law of the Anglo-American tradition harking back to Augustine and perfected by Locke.

We are not going to be ruled by the natural law interpretations of far right social, religious reactionaries who hearken back to the 18th and 19th centuries.

We are governed by the Constitution as We the People and our legislatures and courts interpret it today.

Wonderfully, the numbers and %s of these folks are decreasing as America becomes younger, more secular, darker, and technologically oriented.

 

[OKTexas]

The contract has been amended 27 times and thousands of times by federal courts.

OK, understand: the government and the overwhelming number of We the People don't care if you agree or not.

Choices have consequences, pard.

Well fakey you're the kind of person I swore to protect our Constitution against, a domestic enemy and the death of people like you are as justified as any terrorist, because your intent to destroy this country is the same. There's a breaking point coming and may not be as far off as one might think.

Well, Tigger, as a real oath keeper (I served twelve years active duty), I am not concerned about domestic terrorists like you threatening me. You are hot air, nothing more.

The Constitution is well defended from you and yours.

A whole goddamned 12 years, I'm so ******* impressed, I retired with 26 years so I'll put my service medals up against yours any day. Your words have proven you have no honor and no interest in protecting this country against the progressive slime like yourself. The Constitution stands alone as written and no judge has the power to alter it or it's meaning, only the states can do that through article 5. All branches of the federal government are ruled by that document, not the other way around. You don't like it move your senile ass to a country that has a government that better suits you, may I suggest N Korea.

 

[M.D. Rawlings]

The irony (or perhaps the entirely predictable outcome) of this thread is the fact that it's devolved into irrelevant distraction. Obviously the Constitution must be interpreted. Nether side of the "living document" debate disputes that. The question is how should it be interpreted? Should the goal be to understand and represent the intent of those who ratified and amended it (originalism)? Or should the meaning be subject to the values and circumstances of those doing the interpreting?

Not the intent.

The meaning of the words.



1. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’
“Originalism,” Steven Calabresi, p. 263.

I see. And what was the exact meaning of the word "arms", in as to "keep and bear arms"?

Those suited to the common defense provided by the militia, comprised of the people of the several states, i.e., military-grade armaments at the infantry level, which, today, lawfully include semiautomatic guns and rifles, and rightly so. Automatic rifles should be included too and were until 1939 when statists decided to give the ATF more work to do after the constitutional repeal of Prohibition.

Any more questions?

 

[Antares]

Look folks, Jake is the only REAL Republican and the only REAL Christian here just ask him.

Never mind he lies at every turn, never mind he defends Obama at every turn and never mind he admits voting for the Boi King.

Jake if YOU are a real "Christian" then Christ is fucked because NOBODY wants to be like you.

 

[JakeStarkey]

A whole goddamned 12 years, I'm so ******* impressed, I retired with 26 years so I'll put my service medals up against yours any day. Your words have proven you have no honor and no interest in protecting this country against the progressive slime like yourself. The Constitution stands alone as written and no judge has the power to alter it or it's meaning, only the states can do that through article 5. All branches of the federal government are ruled by that document, not the other way around. You don't like it move your senile ass to a country that has a government that better suits you, may I suggest N Korea.

Obviously your brain and your morals ossified in the later part of your career.

My words have shown that I recognize you for the coward that you have become with no love for your oath or your country.

Our legislatures and the courts of We the People, not Tigger the Terror, decide what the Constitution means.

Son, no one is moving anywhere because of your hissy.

 

[The T]

A whole goddamned 12 years, I'm so ******* impressed, I retired with 26 years so I'll put my service medals up against yours any day. Your words have proven you have no honor and no interest in protecting this country against the progressive slime like yourself. The Constitution stands alone as written and no judge has the power to alter it or it's meaning, only the states can do that through article 5. All branches of the federal government are ruled by that document, not the other way around. You don't like it move your senile ass to a country that has a government that better suits you, may I suggest N Korea.

Obviously your brain and your morals ossified in the later part of your career.

My words have shown that I recognize you for the coward that you have become with no love for your oath or your country.

Our legislatures and the courts of We the People, not Tigger the Terror, decide what the Constitution means.

Son, no one is moving anywhere because of your hissy.

Realy Jake? You are indeed an imbecile. WE are obligated to defend the constitution...NOT the government. Stow it son.

 

[JakeStarkey]

Look folks, Jake is the only REAL Republican and the only REAL Christian here just ask him.

Never mind he lies at every turn, never mind he defends Obama at every turn and never mind he admits voting for the Boi King.

Jake if YOU are a real "Christian" then Christ is fucked because NOBODY wants to be like you.

Anatares projects his self loathing on me as usual.

And you are right, the far right reactionaries and social, religious conservatives had definite problems identifying with the mainstream Republican Party.

 

[Little-Acorn]

"Living, breathing document" is a longstanding liberal excuse for violating the Constitution.

It's their way of trying to pretend that the Constitution doesn't mean what it says.

The very reason for having a written Constitution in the first place, is to prevent liberals from twisting and distorting it. That's doesn't stop them from trying anyway, of course.

A better description of it, would be "the enduring Constitution". The document is there to keep us within a framework of things the Fed govt is allowed to do, and things it is not allowed to do (which is, everything else).

 

[Wry Catcher]

Not the intent.

The meaning of the words.



1. As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in ‘Lopez,’ in which he maintained that the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’
“Originalism,” Steven Calabresi, p. 263.

I see. And what was the exact meaning of the word "arms", in as to "keep and bear arms"?

Those suited to the common defense provided by the militia, comprised of the people of the several states, i.e., military-grade armaments at the infantry level, which, today, lawfully include semiautomatic guns and rifles, and rightly so. Automatic rifles should be included too and were until 1939 when statists decided to give the ATF more work to do after the constitutional repeal of Prohibition.

Any more questions?

Nope, you'll excuse my LMFAO. Original intent includes the use of nuclear, biological and chemical weapons delivered by missiles able to travel thousands of miles in less than an hour. Who would have known the founders were so prescient.

 

[Antares]

Look folks, Jake is the only REAL Republican and the only REAL Christian here just ask him.

Never mind he lies at every turn, never mind he defends Obama at every turn and never mind he admits voting for the Boi King.

Jake if YOU are a real "Christian" then Christ is fucked because NOBODY wants to be like you.

Anatares projects his self loathing on me as usual.

And you are right, the far right reactionaries and social, religious conservatives had definite problems identifying with the mainstream Republican Party.

What makes you a "good christian" Jake?