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Rereading the Constitution

Texanmike

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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
 
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Texanmike

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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:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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:
Second: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[56]
Third: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Fourth: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Seventh: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Eighth: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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:
The honorable gentleman says there are only three rights stipulated in it. I thought this error might have been accounted for at first; but after he read it, the continuance of the mistake has astonished me. He has wandered from the point. [Here he read Mr. Whitens proposition.] Where in this paper do you discover that the people of Virginia are tenacious of three rights only? It declares that all power comes from the people, and whatever is not granted by them, remains with them; that among other things remaining with them, are liberty of the press, right of conscience, and some other essential rights. Could you devise any express form of words, by which the rights contained in the bill of rights of Virginia could be better secured or more fully comprehended? What is the paper which he offers in the form of a bill of rights? Will that better secure our rights than a declaration like this? All rights are therein declared to be completely vested in the people, unless expressly given away. Can there be a more pointed or position reservation?

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
 

PoliticalChic

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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

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.
 

konradv

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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
 
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Texanmike

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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.

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
 

OohPooPahDoo

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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

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.
 

CryingKoala

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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

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.

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.
 
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Texanmike

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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

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.

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.

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
 

Ernie S.

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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

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.

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.

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.
 

Salt Jones

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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

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

zzzz

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Here is a link to the Federalist papers. They will give you some insight on what the authors were trying to do and they were written by Alexander Hamilton, John Jay, and James Madison. Any study of the constitution would not be complete without reading these papers.

The Federalist Papers - THOMAS (Library of Congress)
 

ladyliberal

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It sounds like you're already more familiar with the framers' original intent than most of us. After the text of the Constitution itself, I suppose the Federalist papers are the most important single primary source.

I think you're asking for more unambiguous answers than exist. As others have pointed out, although your phrasing suggests that the framers had a single "original intent", they actually disagreed on almost everything.

For example, consider the then-fundamental question of slavery. Clearly, many framers wanted to protect it, while others would have preferred to see it abolished.

We can resolve, in a way, the issue of slavery. The document clearly, though implicitly, allows it. In this way one could say that the framers' intent was clear in the aggregate, even if their *desires* differed sharply. Not so with other conundrums. The eighth amendment seems to have been worded as ambiguously as possible. The founders could have made a list of known punishments in their day and identified each as permissible or impermissible, but they didn't. The intent of the framers was clearly that the Constitutionality of an act could not always be determined by considering the intent of the framers.

As to what purpose the Constitution serves when it is not treated as rigid, unchanging and unambiguous, I think it still has an awesome role to play. It is a statement of principle, and a statement of value, and it is dearly embraced by both the judiciary and the public. No judge, not even Thomas or Scalia, relies solely on the text of the Constitution to make their decisions, but all are guided by their vision of its principles.

Also, for the record,

1) Although in effect the Constitution was a contract between the states (with only Rhode Island putting it to a referendum, where it was voted down) it describes itself as a declaration by the *People*, not the states.

2) The consideration of the framers' intent is a somewhat academic exercise today (though worthy!). All of us who aren't well-off white males should be thankful that the Constitution has changed.
 

zzzz

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Madison introduced the amendments (19 of them) which became the first to the 10 and the 27th.
Want to read what Madison sent to the House?
http://www.constitution.org/bor/amd_jmad.txt

The house altered and merged some of the original amendments and got it down to 17. Here is what the house passed:
http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe21200200))

The Senate (who back then were elected by state legislatures not direct vote) further altered and reduced it to 12.
http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe00000600))

The first article was never passed by the states. The second article finally passed 202 years later and became the last amendment, the 27th. The others form the Bill of Rights.
 
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Texanmike

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I guess if I am going to ask for sources I should provide a list of the ones I have and/or refer to on a regular basis.

I haven't gone back to all of these this time but I have read and have at least a familiarity with:

The Federalist Papers
The Anti-federalist papers
Of Ancient and Modern Confederacies
The Second Treatsies of Government
A Treatise of Human Nature
The Perfect Commonwealth
The Spirit of Laws
Letters to/from the following people
Thomas Jefferson - George Washington
Thomas Jefferson - John Jay
Mason-Jefferson
Patrick Henrey-Washington
Knox-Washington
I'm tired of writing this list of names, it is rather exhaustive
(too many to list individually and most are a part of about 45 different compilations of our founding fathers work but if you happen to know of any obscure letters/sources please let me know.)
One book I consider to be an excellent reference is "Founding America - Documents from the Revolution to the Bill of rights" It is excerpts from many other works and several letters.
The State Constitutions of all 13 states
The George Washington Papers (a record of many of his speeches/letters)
The James Madison Papers
The Jefferson Papers
Journals of the Continental Congress
New Views of the Constitution of the United States (John Taylor of Caroline)

This isn't all inclusive it is mostly what I have hard copies of or ready access. I'm not claiming to be an expert on all of these but I have at least read all of them. This has kind of been a passion of mine for about the last 3 years (When I reflected on GWB and then saw McCain vs Obama and thought O M G.. what are we doing to ourselves?) If you haven't read them and are interested, I would start with the last book I listed. It is written by John Taylor of Caroline. He was a Senator a Signer of the Declaration of Independence and was at the Convention at Annapolis and the Convention.

I'm really looking for odd/out of the way accounts of the Conventions. One of the hardest things to find, for me at least, has been notes and accounts of the committees within the convention. I've managed to find a few but usually official records weren't kept because they felt that the record keeper might develop an affinity for one political position and paint the opposing side in a negative light in history.

Mike
 
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Texanmike

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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

Are you familiar with the actual words of Jefferson? That is an abridged version. It is from a letter and the quote is deceptive when not in context.

Thomas Jefferson to H. Tompkinson AKA Kercheval said:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that 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 disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and 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. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves. But how collect their voice? This is the real difficulty. If invited by private authority, or county or district meetings, these divisions are so large that few will attend; and their voice will be imperfectly, or falsely pronounced. Here, then, would be one of the advantages of the ward divisions I have proposed. The mayor of every ward, on a question like the present, would call his ward together, take the simple yea or nay of its members, convey these to the county court, who would hand on those of all its wards to the proper general authority; and the voice of the whole people would be thus fairly, fully, and peaceably expressed, discussed, and decided by the common reason of the society. If this avenue be shut to the call of sufferance, it will make itself heard through that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; and oppression, rebellion, reformation, again; and so on forever.

That is the actual paragraph. Interestingly enough, he makes perhaps one of the most overt appeals for a federal system in that same letter.

The long and short of it is that the Constitution does change and should change. Notice though that he talks about amending it to suit the needs of the changing society. He doesn't talk about how the interpretations of laws should change. I'm a very staunch advocate of amending the document where needed. I've even proposed several amendments I would like to see. What I do not like is the idea of amending it through the judiciary, I just do not think it is prudent to grant them the dual power of judiciary and of legislature.


Mike
 
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Texanmike

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It sounds like you're already more familiar with the framers' original intent than most of us. After the text of the Constitution itself, I suppose the Federalist papers are the most important single primary source.

I think you're asking for more unambiguous answers than exist. As others have pointed out, although your phrasing suggests that the framers had a single "original intent", they actually disagreed on almost everything.

For example, consider the then-fundamental question of slavery. Clearly, many framers wanted to protect it, while others would have preferred to see it abolished.

We can resolve, in a way, the issue of slavery. The document clearly, though implicitly, allows it. In this way one could say that the framers' intent was clear in the aggregate, even if their *desires* differed sharply. Not so with other conundrums. The eighth amendment seems to have been worded as ambiguously as possible. The founders could have made a list of known punishments in their day and identified each as permissible or impermissible, but they didn't. The intent of the framers was clearly that the Constitutionality of an act could not always be determined by considering the intent of the framers.

As to what purpose the Constitution serves when it is not treated as rigid, unchanging and unambiguous, I think it still has an awesome role to play. It is a statement of principle, and a statement of value, and it is dearly embraced by both the judiciary and the public. No judge, not even Thomas or Scalia, relies solely on the text of the Constitution to make their decisions, but all are guided by their vision of its principles.

Also, for the record,

1) Although in effect the Constitution was a contract between the states (with only Rhode Island putting it to a referendum, where it was voted down) it describes itself as a declaration by the *People*, not the states.

2) The consideration of the framers' intent is a somewhat academic exercise today (though worthy!). All of us who aren't well-off white males should be thankful that the Constitution has changed.

I agree and disagree with you on a lot of things lol.

As for the original intent, I am not trying to suggest that they had a single intent or that it was a harmonious event. The Continental Congress actually far exceeded the authorization of the original intent. Madison worked with Knox, actually, to get Washington's support for the Constitution and had designs of a new Constitution years before the Convention. His "skull session" which resulted in the "Notes on ancient and modern confederacies" predated the Convention at Annapolis by between 6 months and a year. Some of the delegates to the conventions were even writing in code to each other for fear that the delivery service men were not honest and were leaking secrets to the other side.

I'm not saying then, that there was a single, unified intent... but rather that there was a intended compromise. You, me and 60 other people may fundamentally disagree on how to set up a government but if we are to successfully do it, we must all come to an agreement. That agreement does have intent. Whether slavery was or was not intended to be continued by every member or ended by every member is immaterial. The resulting compromise however did have an intent and that is what I am after. The two (actually three, there were some who thought that Jefferson did not go far enough (John Taylor of Caroline being one of them)) sides came together and made a bargain. To say that it is a fruitless endeavor or an academic one, in my opinion is dismissive of what was created. I would argue that you cannot expect to operate the machine (the government) that they left us unless you do attempt to determine what the original compromise was. If you don't do that then how do we find common ground? Where do you and I (probably different sides on a lot of debates) find our starting point? How do we operate with one another without resulting ti insurrection?

Mike
 

Ernie S.

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Madison introduced the amendments (19 of them) which became the first to the 10 and the 27th.
Want to read what Madison sent to the House?
http://www.constitution.org/bor/amd_jmad.txt
The house altered and merged some of the original amendments and got it down to 17. Here is what the house passed:
American Memory from the Library of Congress))
The Senate (who back then were elected by state legislatures not direct vote) further altered and reduced it to 12.
American Memory from the Library of Congress))

The first article was never passed by the states. The second article finally passed 202 years later and became the last amendment, the 27th. The others form the Bill of Rights.

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I'd really like to see the LOC material. Could you see what you can do to fix the links?
 

C_Clayton_Jones

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I'm not looking at case law or settled law because I believe it is flawed.

Then you’re making any relevant discussion difficult, as the Constitution is in essence law – the culmination of over 1000 years of Anglo-American jurisprudence predicated on common law, case law and precedent, dating back to and before the Magna Carta.

The Framers’ original intent is often difficult to divine – they didn’t speak with a single voice or were of a single mind. Indeed, many changed their positions over the years.

Given your parameters of discussion, one can only consider three tenets of the Constitution all Americans should consider ‘common ground.’

1. Inalienable rights – that one realizes his rights by virtue of being human, a ‘person,’ as noted in the 14th Amendment. Neither the government nor Constitution gave us our rights, nor may either take them away. The purpose of the Constitution, and the Bill of Rights in particular, therefore is to ensure these rights not be violated by the state.

2. The Rule of Law – the doctrine of the rule of law predates the Foundation Era, the Framers realized its importance hence their creation of a Republic, not a democracy. The Framers knew that men could not rule other men justly, that all three branches of the government and the people as well were subject to the rule of law. Even if a majority of the people should vote to take away a particular group’s rights, the Constitution would prohibit such preemption.

3. Judicial Review – as with the rule of law and inalienable rights, the doctrine of judicial review predates the Foundation Era as well and was known to the Framers as the only just and appropriate way to apply the laws to the people. The Federal courts were entrusted with the role of interpreting the Constitution to bring about resolution to disputes as to its meaning and appropriate application.

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.

Correct. And the issue was settled in the case of McCulloch v. Maryland (1819). However flawed, it it’s the law of he land. To try to ignore it is naïve and pointless.

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.

Agreed, it has nothing to do with right and wrong – it as to do with case law and precedent: how have jurists addressed the issue in the past, what ruling or judgement would be consistent with that.

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.

It depends on what one means by ‘modern.’ Are Marbury and McCulloch modern? Yet these seem the most controversial rulings the Court ever made, for some.

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?

Per the rule of law changes would not be voted on in the first place – one’s rights are not subject to popular opinion.

The conflict is between two new Constitutional factions: the Pre Amendment faction that focuses on government restriction with regard to the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause, that the courts have given Congress too broad authority. Many see this too broad authority as a violation of ‘individual rights’ where one has the right to run his business free from government regulation, for example.

The Post Amendment faction, on the other hand, focuses their concern with regard to ‘individual rights’ in the context of government restriction concerning privacy rights, 4th Amendment search and seizure rights, 5th and 6th Amendment due process rights, and 14th Amendment equal protection rights.

In addition to not speaking the same ‘individual rights language,’ the two factions conflict on emphasis of importance, where the Pre Amendment faction is not overly concerned about due process and equal protection issues and the Post Amendment faction isn’t overly concerned about property and business rights.

The first step toward rapprochement would be for both factions to try to give greater concern for the others’ Constitutional priorities.
 

OohPooPahDoo

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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.

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.

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.

Who decides what it means as written? You?
 

zzzz

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Madison introduced the amendments (19 of them) which became the first to the 10 and the 27th.
Want to read what Madison sent to the House?
http://www.constitution.org/bor/amd_jmad.txt
The house altered and merged some of the original amendments and got it down to 17. Here is what the house passed:
American Memory from the Library of Congress))
The Senate (who back then were elected by state legislatures not direct vote) further altered and reduced it to 12.
American Memory from the Library of Congress))

The first article was never passed by the states. The second article finally passed 202 years later and became the last amendment, the 27th. The others form the Bill of Rights.

Our Search Engine encountered a problem with your query. Please check that you have entered a query.
I'd really like to see the LOC material. Could you see what you can do to fix the links?

The links have been fixed.
 

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