Why is the Senate Dem Leadership Doing It?

[lawrocket 3]

Quote

Have you ever tried to actually write a law?

Nope. I haven't. But I've had to write about 100 orders, which better state exactly what to do and not do. If there's room for reasonable intrpretation of terms, that causes problems, and since people are bound, it better damned well be pretty precise:

"But officer, there is a court order stating my ex-husband can only pick our daughter from school on the at the end of the 1st, 3rd and 5th school weeks of the month unless I provide written consent. "

At father's place, the father pleads with police:
"The judge said I could in open court. The order says it, too."
"Sorry, sir, this order says nothing about picking up from school on a Wednesday."
"But it's Thanksgiving tomorrow. This is the last day of school thsi week."
"The order only says from church on Tuesday night and from school on the last day of the school week on the 1st, 3rd and 5th weeks of the month, and school weeks end on Fridays. Place your hands behind your back. You are being charged with parental abduction."

Guess who's in trouble if that happens? Everybody. So I have some experience at drafting precise words to regulate peoples' conduct. My ass ain't gonna do that to somebody because I'm sloppy and leave it to everyone else to figure out the underlying "intent" of the order. The Order is all anybody goes off of, dude. They are the rules.

And it's a shame that courts will hold people criminally liable for doing something that is apparently authorized on the face of the document. What if the court agrees and says, "By 'end of the school week' we hold that the 'end of the school week' means 'Friday.'"

Courts look to "intent" all the time in just that way, only with statutes. Scalia and Thomas would say, "this law is too vague to be enforceable" and toss it out, since it doesn't put people on notice of what will constitute a criminal or civil wrong.

Quote

It's nigh impossible to consider every single possible scenario.

Yep. Let's hope neither of us are ever on the losing end of vagueness and ambiguity in the legal sense.

Quote

Should the writers of the constitution have to define every possible definition of speech, and abridgment thereof?

Nope. But when someone has a reasonable reading of something that indicates that his conduct is allowable, that person should not be told, "You should have read the Federalist and Madison's convention notes, and you would have know what the intent was."

Quote

Should they have to define every possible meaning for "secure in their persons, houses, papers, and effects" and "unreasonable search or seizure"?

Nope. It's up to the legislature to make laws that are in conformance with it. If you think you are the victim of an unreasonable search and seizure, then you challenge it. "But I am operating under a law Congress passed that allows me to wiretap without warrant." Well, then, it's up to the courts to decide the legality of that statute, not look into the "intent" of the statute.

The Constitution is NEVER facially invalid. Laws can be facially invalid due to constitutional restraints. It is looking into the INTENT of the laws that I find to be bullshit, since words do the regulating, not "intent."

Quote

Sometimes, leaving "intent" to be decided by learned, impartial, modern-age judges really is the best way to go.

I cite my visitation order as an example of where looking at "the intent" behind the words can be open to interpretation. And when it lands someone in jail, even though the person had a reasonable interpretation of the words on the order, then there should be no business holding a person criminally liable when the person complied with the terms of the order.

A learned judge may know better what "end of the school week" means than you do. Then again, there are plenty of people out there who know that what you need is a firm relationship with and commitment to their God. They know what's better for you, too.

This is the danger of the hidden "intent." Women know not to accept drinks from starngers in bars because the "intent" of the transaction may not be known to them. Imagine a society where this is the basis of the law.

I'm glad Scalia and Thomas are fighting against that.

My wife is hotter than your wife.

[Channman 2]

> They need to kick him out and appoint someone else in charge. Quote:

Well, I was with you up until you started trying to help em. Dean is doing a fine job and should be encourage to continue in his current position.

Just a Note: Dean and Harry Reid are going at it, and Dean appears to want some blood, will he offer up Reid's head on a silver platter? it just does'nt get any better than this.

[kelpdiver 2]

Quote

I will voice the opinion that Thomas and Scalia are neither "radical" nor "out of touch."

It sure seems like whenever I read that there was an 8-1 decision, Thomas was the 1. Or if it was 7-2, good chance it's Scalia and Thomas. What can one conclude about them, other than out of touch? Isn't this the same argument used against the 9th Circuit? Often overruled?

Scalia does actually support his decisions. Thomas....well, I guess even constitutional law needs its clowns.

[peacefuljeffrey 0]

Quote

While I think that your take on strict constructionism is a good one, you have to acknowledge that there are some serious problems with this theory.

There is far less difficulty arising from strict construction than from liberal "reinterpretation."

With the former, you attempt to pin down EXACTLY what was meant -- and only disingenuous people pretend that one phrase can validly be interpreted six different ways and keep a straight face. (The second amendment is a very good example of this kind of disingenuousness.)

With the latter, you open the door to every Tom, Dick and Harry coming in and insisting that HIS "modern" interpretation of an amendment, clause, etc. is what we should be going by. Gone is any possibility of uniformity and stability.

Quote

Because these terms are so broad and ambiguous, it is sometimes impossible to discern the meaning of the terms by simply looking at the phrase itself. Originalists like Scalia and Thomas counter this argument by interpreting the terms in the Constitution by what the "framers" meant when they write the Constitution. There are two problems with this argument.

First, interpreting a term as the framers meant for it to be interpreted is NOT simply looking at the words themselves. It is determining what the framers meant by those words. I don't understand how this is any different from interpreting statutory language to mean what its authors intended it to mean.

Second, it is impossible for ANY of us to know what the framers really thought. The notes from the Constitutional Convention are sketchy at best, and often one version will contradict another.

There are other "notes" apart from those from the Convention. They are conveniently ignored by (mostly leftist) "reinterpreters" of the Constitution when they don't suit the purpose of those people. One does not have to go far to find abundant support for a clearly INDIVIDUAL right to keep and bear arms, and yet modern liberal reinterpreters tell us that the framers were talking about a National Guard that would not be created for more than a hundred years hence...

You can give up the farce that we can't find clarity about what they must have been trying to write into the Constitution.

Only people looking for silly loopholes pretend that this brilliant document (some even conjecture that they had extraterrestrial help in crafting it) isn't as clear as it truly needs to be.

-

-Jeffrey
"With tha thoughts of a militant mind... Hard line, hard line after hard line!"

[kallend 2,175]

Quote

Quote

While I think that your take on strict constructionism is a good one, you have to acknowledge that there are some serious problems with this theory.

There is far less difficulty arising from strict construction than from liberal "reinterpretation."

With the former, you attempt to pin down EXACTLY what was meant -- and only disingenuous people pretend that one phrase can validly be interpreted six different ways and keep a straight face. (The second amendment is a very good example of this kind of disingenuousness.)

With the latter, you open the door to every Tom, Dick and Harry coming in and insisting that HIS "modern" interpretation of an amendment, clause, etc. is what we should be going by. Gone is any possibility of uniformity and stability.

Quote

Because these terms are so broad and ambiguous, it is sometimes impossible to discern the meaning of the terms by simply looking at the phrase itself. Originalists like Scalia and Thomas counter this argument by interpreting the terms in the Constitution by what the "framers" meant when they write the Constitution. There are two problems with this argument.

First, interpreting a term as the framers meant for it to be interpreted is NOT simply looking at the words themselves. It is determining what the framers meant by those words. I don't understand how this is any different from interpreting statutory language to mean what its authors intended it to mean.

Second, it is impossible for ANY of us to know what the framers really thought. The notes from the Constitutional Convention are sketchy at best, and often one version will contradict another.

There are other "notes" apart from those from the Convention. They are conveniently ignored by (mostly leftist) "reinterpreters" of the Constitution when they don't suit the purpose of those people. One does not have to go far to find abundant support for a clearly INDIVIDUAL right to keep and bear arms, and yet modern liberal reinterpreters tell us that the framers were talking about a National Guard that would not be created for more than a hundred years hence...

You can give up the farce that we can't find clarity about what they must have been trying to write into the Constitution.

Only people looking for silly loopholes pretend that this brilliant document (some even conjecture that they had extraterrestrial help in crafting it) isn't as clear as it truly needs to be.

-

You must particularly like this part, clearly brilliant:

"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

Quote

You must particularly like this part, clearly brilliant:

"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

See, now we are getting somewhere. You are citing Article 4, Section 2 of the Federal Constitution. It is noteworthy that it was determined that this provision meant what it said. A "mainstream" Court would say, "This is a living, breathing document, and while it is Constitutional because, well, it's in the Constitution, we hold that it conflicts with the 4th Amendment prohibition against search and seizure's penumbra of rights, and therefore we strike this provision from the Constitution."

See, back then people realized that words had meaning. Thoughts and ideas had meaning. Rather than the Constitution being up for political rulings by "progressive" or "mainstream" judges, back then it was realized that while the Constitution had a fucked up provision, it was what it was.

Therefore, a nice process took place, which resulted in Amending the Constitution! Imagine that! The People said, "That provision is unjust. Why don't we use the process that was set up to make changes to the Constitution?" It resulted in what we call the 13th Amendment, which banned slavery. It's nice that you cite a provision of the Constitution that was banned 150 years ago.

So, if you think there is a protection that the Constitution should give but does not, Amend it. "Oh, but it's so hard to get an Amendment to pass! Boo hoo! We need judges who will know what's right and wrong, who will recognize that society changes." There's the doctrine of "political question" that federal courts are to stay out of. Judges should not be doing this.

By the way, all of you "living, breathing Constitution" advocates, it is noteworhty that you believe it because of your beliefs. Why don't we say that everything that is being said about the American Taliban Bush Administration is TRUE! And let's say that we are moving towards a Christian Religious Republic. And let's say that in another 5 years, the American Public becomes convinced that, like slavery, abortion is a horrific thing to do.

Well, the "living, breathing Constitution' would not operate in your favor anymore. It can be truned on its side to let Scalia, Thomas, Alito and Roberts use it to ban abortion totally. Period. End of story.

Why, torture is a big thing now. Am I the only person who recognizes that Bush is using the "living, breathing Constitution" line of argument? "Times have changed. We have a new enemy the likes of which was not foreseen by the Founding Fathers. This is a new century, a new millenium, and the protections offered by the Constitution must be balanced in light of the threat to this nation's very existence."

Ooooh, YUCKY! "We don't want an expansive view of the Constitution when a REPUBLICAN is doing the expansion! The horror! The horror! Why, these are the Constitutional protections that I hold dear, not those other ones."

In the Alito hearings, Alito was grilled as to whether or not he would apply stare decisis ("let the decision stand") in his rulings. This means that if this issue has been decided by the courts before, use that decision. The reason is that they don't want him voting to overturn Roe v. Wade. Yes, even if the society changes to abhor the act.

Yet, the "living, breathing" Constitution line of thought ignores stare decisis because, hey, things change, and what might have been fair and just 50 years ago ain't fair and just now, right?

Got a problem with the Constitution? Amend it. It takes political will to do so. If you don't have the political will to do it, then it is not worth amending.

Professor, you've given the greatest example of how the system is supposed to work. "A living, breathing" example. It still has life. And it disposed of slavery because it was the RIGHT thing to do, and the RIGHT way to do it.

My wife is hotter than your wife.

[kallend 2,175]

How do you interpret Amendments IX and X?

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

I personally interpret Amendment IX by its plain language, meaning "there are other rights out there that are not stated." Thoughout the 19th Century, the 9th Amendment was construed ad Madison - and the states that ratified the 9th - intended it: the 9th amendment was to preserve the rights of local governments to govern themselves. Until the 1930's and 1940's, this was how it was interpreted as well by the Courts.

This principle is best seen in the eminent domain case. Under the Federal Constitution, it was decided that governments can take over private property for private development. However, States themselves can ban it. Therefore, that the federal Constitution allows this does not disparage the rights of the states to give greater property rights to individuals. The eminent domain case occured in a state that allowed this type of government transaction to occur.

The 9th was therefore intended to limit the intepretation of federal powers and rights, which is why the 9th went hand-in-hand with the 10th Amendment, which preserved self-governance of the states.

Then the New Deal came along and the FDR packed Courts decided that the 9th and 10th Amendments were worthy of ignoring. There were important national matters, you see, and therefore the feds needed more power. Thus, the court was packed (and was to be more packed until the "switch in time") with progressive thinkers who knew what needed to be done.

The New Deal jurisprudence held that through the commerce clause, the feds could control everything. The 9th and 10th Amendments were left to the dustbin, for they interfered with the necessity of massive expansion of federal power. States might not cooperate, and the commerce clause was what they used.

You can thank FDR, Warren, et al, for the fact that the feds can pinch you for purely intrastate personal growing and use of marijuana, or growing your own wheat, etc.. Sure, the 9th and the 10th amendments would suggest that matters like this should be relegated to the states. Nothing in the Constitution prohibits pot or farming, right?

Ah, but the Feds can regulate it, since personal growth of pot would obviously impact interstate commerce if everybody did it. Why, seeds are transported on public roads. So if there's something that the feds don't like, ban it through the commerce clause.

Isn't it amazing that guys like Thomas are the ones who call bullshit to this? But he's a "strict constructionist" and is "out of the mainstream."

What you fail to recognize, good professor, is that the Federal Government expands rights not via the 9th or the 10th. They use the 1st Amendment and due process to find "penumbras" of rights. The 9th was intended to LIMIT those protections and reserve them to the states.

Let's look at abortion. Hey, a federal right, yo. Using the intended system of the 9th and 10th Amendments, the feds would say , "Abortion? None of our business. Either we can amend the Constitution to protect it, or we can forget about that proces by letting the states decide on their own via the 9th and the 10th Amendments. California? You want abortion? Go ahead. Kansas? No abortion? Be our guest."

But no, we can't have that, can we? We need an omnipresent federal government to control all of this. We'll ignore the 9th and the 10th Amendments. The states don't know what's good for them. We'll use the commerce clause, and we'll use the 1st and 14th Amendments to make sure the states play ball."

Let's give thanks to the bravery, foresight and mainstream thinking of the Courts. Far out, man. Dig it!

Thanks, all of you "living, breathing Constitution" folks. Your way of thinking caused this. I guess it's because some Constitutional rights are more important than others, eh? (We can't let Alabama decide its own fate!)

My wife is hotter than your wife.

[kelpdiver 2]

Quote

What you fail to recognize, good professor, is that the Federal Government expands rights not via the 9th or the 10th. They use the 1st Amendment and due process to find "penumbras" of rights. The 9th was intended to LIMIT those protections and reserve them to the states.

I always saw those last two in place to protect people's rights, not to give the state the option to restrict on their own. It boggles to mind to think it was intended to allow Kansas to force a woman to travel all the way to Calfiornia for medical care.

[kallend 2,175]

Quote

What you fail to recognize, good professor, is that the Federal Government expands rights not via the 9th or the 10th. They use the 1st Amendment and due process to find "penumbras" of rights. The 9th was intended to LIMIT those protections and reserve them to the states.

What makes you think i fail to recognize it, my learned friend?

Why did your long discourse omit the rights reserved to the PEOPLE?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

Quote

I always saw those last two in place to protect people's rights, not to give the state the option to restrict on their own.

It's the opposite of this. The Federal Constitution gives the baseline of rights to be protected. If the individual states want to give the people more rights, then they can.

For example, a local government cannot take my house via eminent domain to turn it into a Costco in California. In Vermont, the state CAN. The reason is that the State of California decided to give its people MORE rights than the Federal Constitution.

But, thanks to the 15th Amendment, the States cannot restrict your free speech, etc.

Quote

It boggles to mind to think it was intended to allow Kansas to force a woman to travel all the way to Calfiornia for medical care.

The same way it boggles your mind that you have to travel all the way to Nevada to visit a legal prostitute? Or to gamble? The same reason I couldn't get beer on Sunday in Kentucky? The same reason why Vermont could allow gay marriage?

If a state wants to give you more rights, it can. If a state says, "We aren't gonna legalize prostitution" then it can lose that gambling money to its neighbor.

What's wrong with that?

My wife is hotter than your wife.

[lawrocket 3]

Quote

Why did your long discourse omit the rights reserved to the PEOPLE?

It didn't. It was about that. The right to have a doctor help me off myself isn't available to me in California yet. I have to go to Oregon for that.

But, I may get that right. It is "reserved." I like to think of "reserved" in ordinary and concise language. "This table is reserved for you." Sure, it's not your table yet, but you can have it if you want."

The People therefore have rights reserved if they want them. It takes effort, however. Note that nothing in the Constitution prohibits theft. Nothing says that cattle are a public resource. But, if California wants to pass a law that says, "all cattle on California State land, regardless of ownership, shall be a public resource." Well, then, I'm gonna go out and try to find some horses so I can make some glue.

The People of the State have just given The People of the State a new right allowing cattle rustling.

BTW - if the feds want to pass a statute granting more rights, or even an amendment, they can do that, too.

Did I satisfactorily clarify?

My wife is hotter than your wife.

[kelpdiver 2]

Quote

The same way it boggles your mind that you have to travel all the way to Nevada to visit a legal prostitute? Or to gamble? The same reason I couldn't get beer on Sunday in Kentucky? The same reason why Vermont could allow gay marriage?

health care is a basic human right. The only other one remotely on the same plane would be marriage - my reading of Loving says that states shouldn't be allowed to restrict that one either.

[lawrocket 3]

I personally disagree tha "healthcare" is a basic human right. I think basic rights are dictated by what one can do for ones self, not what others can do for someone. So, I think that the right to healthcare should be limited to the right to do whatever self-treatment you want, but I, as a private citizen, should have the right to not treat you if I find the treatment personally abhorrent, and certainly should have the right not to have my money taken by force by the government for your healthcare.

It's like the difference between the right to have sex with whomever you want versus the right to get laid with whomever you want. Once someone else MUST do something for you, it ceases becoming a "right."

My wife is hotter than your wife.

[mnealtx 0]

A-friggin-MEN

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[kelpdiver 2]

Quote

I personally disagree tha "healthcare" is a basic human right. I think basic rights are dictated by what one can do for ones self, not what others can do for someone. So, I think that the right to healthcare should be limited to the right to do whatever self-treatment you want, but I, as a private citizen, should have the right to not treat you if I find the treatment personally abhorrent, and certainly should have the right not to have my money taken by force by the government for your healthcare.

sorry, this is bullshit. maybe you're confusing this with the requirement that pharrmacists must fill birth control and plan B subscriptions. Even then, they're not being force to treat the customer, just give them the drugs that their own doctor proscribed.

a state ban on abortion prevents a private citizen from getting care from a doctor willing to provide it. It has nothing to do with the paragraph you write. If you're concerned with free healthcare, that was not part of the conversation unless you want to make it so.

As for the right to healthcare, look under that 'pursuit of happiness' bit. Dying seems to be missing the spirit there.

[mnealtx 0]

Quote

As for the right to healthcare, look under that 'pursuit of happiness' bit. Dying seems to be missing the spirit there.

So does "sponge off everyone else" but ~1/2 the country seems to have no problem with it...

I've decided I want to be a jump bum...that's my 'pursuit of happiness'... I'll be waiting for the checks to come in so I can hang out at the DZ, drink beer and jump. Make sure you get the address right, ok??

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[lawrocket 3]

Quote

maybe you're confusing this with the requirement that pharrmacists must fill birth control and plan B subscriptions.

I guess I just have a different set of beliefs. I believe that if a person doesn't want to have to provide certain things, he or she shouldn't be forced to. Of course, this feeling is contraindicated by my belief that the pharacist took an oath, and that words have meaning. You don't want to dispense birth control? Well, then, don't be a pharmacist. Dispensing legal prescriptions is in the job description, and there is no right to be a pharmacist (it's done via license granted by the individual states and the Feds).

(Then again, pharmacists can't dispense pot because the feds say they can't. The SCOTUS (with Thomas the strongest dissenter) said that it doesn't matter is a state allows it, it can be a federal crime. Too bad the 9th and 10th Amendments have been set to obscurity).

Quote

a state ban on abortion prevents a private citizen from getting care from a doctor willing to provide it

Yep. And seeing as how the federal constitution doesn't seem to mention that right of privacy (I agree that Roe v. Wade is a poorly reasoned opinion. It was a helluva stretch) it should be left to the respective states. It's a matter of philosophy.

Quote

s for the right to healthcare, look under that 'pursuit of happiness' bit.

That was in the Declaration of Independence. Persuasive authority? Yes. But it's no more binding on courts than the Federalist papers (which, ironically, explain the reasons for the Constitution). The Dec of Independence is a nice place to look for philosophy (however, I note that it was a collective vent against the King). But it sets forth no law. Even if it did, when the Constitution was ratified, it set up a whole new set of rules (Kinda like the 13th Amendment set up new rules regarding slavery).

My wife is hotter than your wife.

[kallend 2,175]

Quote

Quote

maybe you're confusing this with the requirement that pharrmacists must fill birth control and plan B subscriptions.

I guess I just have a different set of beliefs. I believe that if a person doesn't want to have to provide certain things, he or she shouldn't be forced to. Of course, this feeling is contraindicated by my belief that the pharacist took an oath, and that words have meaning. You don't want to dispense birth control? Well, then, don't be a pharmacist. Dispensing legal prescriptions is in the job description, and there is no right to be a pharmacist (it's done via license granted by the individual states and the Feds).

(Then again, pharmacists can't dispense pot because the feds say they can't. The SCOTUS (with Thomas the strongest dissenter) said that it doesn't matter is a state allows it, it can be a federal crime. Too bad the 9th and 10th Amendments have been set to obscurity).

Quote

a state ban on abortion prevents a private citizen from getting care from a doctor willing to provide it

Yep. And seeing as how the federal constitution doesn't seem to mention that right of privacy (I agree that Roe v. Wade is a poorly reasoned opinion. It was a helluva stretch) it should be left to the respective states. It's a matter of philosophy.

Quote

s for the right to healthcare, look under that 'pursuit of happiness' bit.

That was in the Declaration of Independence. Persuasive authority? Yes. But it's no more binding on courts than the Federalist papers (which, ironically, explain the reasons for the Constitution). The Dec of Independence is a nice place to look for philosophy (however, I note that it was a collective vent against the King). But it sets forth no law. Even if it did, when the Constitution was ratified, it set up a whole new set of rules (Kinda like the 13th Amendment set up new rules regarding slavery).

Surely the D of I establishes some unalienable rights that are so self-evident they don't need to be explicitly mentioned in the Constitution, and that if the government (SCOTUS) tries to infringe, it should be overthrown.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

...

The only sure way to survive a canopy collision is not to have one.

[Amazon 7]

I know this will be attacked as liberal crap by the Left Hand Boys... BUT

A society is judged by how it treats its least fortunate citizens.

I dont think we score very well on the meter of humanity to others in this country.

[brierebecca 0]

Quote

By the way, all of you "living, breathing Constitution" advocates, it is noteworhty that you believe it because of your beliefs. Why don't we say that everything that is being said about the American Taliban Bush Administration is TRUE! And let's say that we are moving towards a Christian Religious Republic. And let's say that in another 5 years, the American Public becomes convinced that, like slavery, abortion is a horrific thing to do.

Well, the "living, breathing Constitution' would not operate in your favor anymore. It can be truned on its side to let Scalia, Thomas, Alito and Roberts use it to ban abortion totally. Period. End of story.

Why, torture is a big thing now. Am I the only person who recognizes that Bush is using the "living, breathing Constitution" line of argument? "Times have changed. We have a new enemy the likes of which was not foreseen by the Founding Fathers. This is a new century, a new millenium, and the protections offered by the Constitution must be balanced in light of the threat to this nation's very existence."

Ooooh, YUCKY! "We don't want an expansive view of the Constitution when a REPUBLICAN is doing the expansion! The horror! The horror! Why, these are the Constitutional protections that I hold dear, not those other ones."

Actually, I would argue that, not only have you just articulated the beauty of such a system of interpretation, but also the fact that it's non-partisan.

As for your torture observations, you make reference to a balancing of the Constitutional rights with additional measures for our protection. Us "living, breathing Constitution" people don't see the Constitution itself as a negotiable. At least I don't. I just see its interpretation as something that may change with the changing views of society. "Cruel and unusual punishment" will undoubtedly be interpreted differently in this day and age than it was in the 18th century, before the advent of electric shock torture and other technical means.

I think the reason more conservatives don't use this argument is because it lends itself more to modern views of expansive rights, and conservatives tend to lean toward tradition.

Lately, however, the Supremes have been relatively reserved concerning personal freedoms and rights. They have, however, been gutting statutes, like 42 USC 1983, that give remedies to those rights. See Gonzaga v. US, if you want some case law (because you were so "disappointed" last time) Marshall in Marbury v. Madison said to "look at law like the bad man" because where there are no remedies, there are no rights in the first place. Without redress, there is no right to speak of, because someone could violate your rights, and you wouldn't be able to do anything about it.

Regarding Amending the Constitution, I guess I don't see the process changing too much anytime soon, and I don't see why we should disenfranchise groups of people while the wheels of change take too long to roll forward into the 20th century.

In the end, I think it's all activism anyway. Originalist arguments can employ whatever sources they wish to reach an interpretation of the "words" in the statute or Constitutional provision. It's not an exact science, and it never will be. We will never be able to know what the original drafters of the constitution were thinking. And even if we do have records from senate debates on a bill, words are an infinitely debatable area - they just mean different things, and that's the way it is.


Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[lawrocket 3]

I like the Dec. of Independence. Jefferson really had a peculiar felicity with the English language, didn't he?

Here's another quote from another document that forms the basis of our present system:

Anyway, the Declaration of Independence puts a big focus on the "Creator." To quote a person who posts here, who made a comment about religion being kept separat from government because "evidence of history shows that it is a corrosive influence for both the religion and the government."

It's interesting that many people, including that same poster, have believed that "building a wall of separation between church and state" is the espoused view of the Constitution, when it was Thomas Jefferson wrote in 1802 to a church in Connecticut.

It has the same legal effect as George W. Bush making statement that he believes that under the powers granted to him by the Constitution to act as Commander in Chief, he can do a lot.

TJ was an interesting guy. But his letters do not reflect the purpose and intent of laws any mroe than do our current president's ideas, opinions and papers.

Here's another statement, though this one is part of the NEW rules, and is controlling.

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

My wife is hotter than your wife.

[kallend 2,175]

Are you saying that the USA no longer respects the self evident truths upon which it is founded, and no longer respects our unalienable rights?

For shame!

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

Saying that is like suggesting that I delieve that Bush is wrong for attempting to protect the people from terrorism. I'm not. I'm merely suggesting that he is going about it the wrong way.

Kallend - who is the arbiter of what rights we have? Who? Who does it? In the tension between rights, who wins? I mean, we have the right to self-determination, right? What if a person determines that he has the right to not allow blacks in his restaurant? But a black man thinks he has the right to eat there? Who wins?

You have the right to state what you think. But I have a right not to be liabled. Who's rights win?

We have certain inalienable rights. They weren't enumerated. So when people asked, "What rights to I have?" The people said, "Whaever is in our constitution." And the people said, "What about the right to free speech?" And the people replied, "It isn't there." So the people said, "Well, then, let's amend it." And they did,and it was enumerated. And the people smiled upon the land, for it was good.

List some "self evident truths." Actually, I think I'll post something asking it.

My wife is hotter than your wife.

[lawrocket 3]

Quote

I think the reason more conservatives don't use this argument is because it lends itself more to modern views of expansive rights, and conservatives tend to lean toward tradition.

I disagree. It's not that I'm not in favor limiting views on rights (I'm a libertarian, for crying out loud). However, I prefer the process of constructionism for three reasons: 1) it puts people on notice of the meaning of the law; 2) it respects stare decisis; and 3) Courts should not find new rights because legislatures do that.

For the first, judicial interpretation of the meaning of words should not be ever changing. If has been held by the SCOTUS that there is no right to a unanimous verdict in the civil arena, then there should be no holding stating a right to unanimous verdict in the civil arena because "times are changing." Instead, the Legislature should write a law that a unanimous verdict of liability must be made for a civil jury. That's it! Really! Not some judge in the 6th Circuti saying, "Times have changed, and while the interpretation of the words has remained unchanged since 1816, we will now interprt it to mean this."

If that happened, now you've got everybody who has lost a civil verdict on a 6-4 margin wondering why they didn't get that preference. IT's because they never had it before, and now they've waived it, thanks to changing meanings. IT also has nasty aspects in failing to notify the public of what is not allowable. Changing the meaning can mean a judge can find a person guilty of something that was never a crime.

Second point - it respects stare decisis. This goes hand in hand with the first - let the decision stand. That way there is less arbitrary ruling by judges. A judge may more easily inject his or her personal feelings into something. "Well, counsel, you know how I feel about the law. Therefore, I will forego the Miranda decision based upon recent developments of society. I will hold that everybody knows about the right to remain silent, and I will impute that knowledge as a knowng waiver when the defendant started talking. The police did not have to read the rights, because he knew them." Wouldn't that be a bitch? And it is foreseeable.

The third point is that courts should not be creating new rights. You should know by now the status of federal common law. If the judiciary were entitled to create new rights, each judge would have his or her own rights that they hold dear. Pragmatically, this creates a ghastly mess for appeals courts.

"Judicial restraint" is a pretty recognizable term. It means that judges need to act within the scope of their powers, and limit powers they have to whatever is absolutely necessary. This is why, so very often, the Legislature reacts to court decisions with new laws that either affirm the judgement, supercede the judgment, or recognize that the judge's hands were tied and pass a law to make a remedy to ensure that an injustice doesn't occur again.

As much as it sucks, I prefer the third of those options. Judges should leave lawmaking to legislatures, and should not be in the business of conferring new and unrecognized substantive rights on people, even if merited. If it was that important, the legislature should deal with it.

My wife is hotter than your wife.