GOP's Whitewashed (mis)reading of the Constitution

Discussion in 'Archive: The Senate Floor' started by Obi-Wan McCartney, Jan 7, 2011.

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  1. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Kimball, originalism still has to allow for the constitution to evolve over time without a specific amendment being made. For example, the 1st amendment when written was never intended to cover the internet or television, and the 2nd amendment when written was never intended to include automatic weapons by virtue of the fact that these things did not exist when the constitution was written. Doesn't mean the constitution has to be amended each time a new technology is implemented. Same thing with the 4th amendment, the founders never intended to prevent law enforcement from using heat vision to peer into a person's home, but we don't require an amendment for the constitution to adapt to changing times.

    It is the principles of the constitution that are supposed to remain constant, the philosophy and the idea. Problem is, there was never any exact agreement on what those principles are, but there is definitely a general agreement. So while I agree we have to stay true to the spirit of the constitution, that we cannot disregard its plain language, and that the written word has to have constant meaning, the constitution has always allowed room for interpretation based on the world of those living in the present, (hopefully with the wisdom and knowledge of the past and some keen foresight into the future).

  2. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    All of that sounds well and good, until you place more of an emphasis on precedent than you do on the actual principles. Once you start putting it into practice, it leads to an abandonment of those principles.

    A clear case of that is in Kelo v. New London, vastly expanding the power of eminent domain. The Constitution was never, in its text or principles, meant to allow the government to take private property from one party to give to another private party simply to increase tax revenues. The principle was to allow the government to take private property for public use, and only that. And yet, through your "evolving constitution" theory, it opens the door to such vast expansions of power.

    And that's not even starting on the abomination that is modern Commerce clause jurisprudence when compared to the text and principles outlined in the Constitution.

    Kimball Kinnison
  3. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    After all these years I certainly know where you stand and what your reasons are. The problem is that people do disagree as to the proper application of those bedrock principles. In order to keep consistency you have to respect the American legal tradition of common law, which predates the Constitution. If the Supreme Court makes a ruling, it is done with the sincere belief that it is being made in accordance with Constitutional principles.

    I am the first to admit that the Supreme Court does not always get it right. I also agree with your point that if we allow too loose and free an interpretation, the Constitution becomes meaningless. However, as I have said many times, a basic tenant of American law is that reasonable minds may differ. Therefore, we have to have someone to make the final call on any particular issue. Further, if the Supreme Court gets it wrong, there are avenues to correct that. The Supreme Court can correct the error itself. Congress can strip the court of its jurisdiction, or the country can enact a constitutional amendment.

    The Supreme Court in recent years has acknowledged the rapid expansion of the commerce clause and its more recent rulings have drawn back and limited that power. The Kelo decision was quite controversial, I would not be surprised to see that ruling limited or even reversed after a change or two on the bench (depending on the appointments of course). However, that isn't really what people are talking about when the "evolving" theory of the constitution is brought up. I haven't read the case in awhile and am not familiar with prior relevant decisions, but it seems like case could have been brought 200 years ago and its certainly possible it could have decided the case the same way then. It's all about interpretation, sometimes the Court does overreach but sometimes they get it right.

    I am actually curious as to your view of federal authority to prosecute criminal cases, as during the time the commerce clause was expanded there was also a rapid growth in federal government's criminal police power.
  4. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The problem here is that ultimately, authority is derived from the People through the Constitution, not through the case law. As such, every judicial ruling should be built upon the foundation of the Constitution, and derive its basis from the principles therein.

    Unfortunately, that's not how it works in practice. When you focus more on the case law than on the actual principles in the Constitution, you wind up playing a game of "Telephone" that distorts the original meaning from the Constitution by passing it through numerous pieces of case law until it arrives at the desired result.

    As I've said before, reasonable people can disagree, but they should still be able to provide a historical foundation for their position. In the end, the side with the better historical argument for interpretation should be the victorious one.

    The Federal government is explicitly given authority over only a handful of things, primarily in two separate clauses:
    These are the only places where the Federal government has or should have a general police power.

    In conjunction with that, the Federal government gains spe
  5. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Interesting. How about the power of judicial review? In the past you seem to be opposed to the idea of judicial review, that the Supreme Court has the ability to strike down laws as unconstitutional because there was no such express grant in the Constitution. Is that your view?
  6. GrandAdmiralJello Moderator Communitatis Litterarumque

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    Member Since:
    Nov 28, 2000
    star 10
    Unfortunately, that's not how it works in practice. When you focus more on the case law than on the actual principles in the Constitution, you wind up playing a game of "Telephone" that distorts the original meaning from the Constitution by passing it through numerous pieces of case law until it arrives at the desired result.

    As I've said before, reasonable people can disagree, but they should still be able to provide a historical foundation for their position. In the end, the side with the better historical argument for interpretation should be the victorious one.



    What you're saying is that the Constitution means what Kimball thinks it means, and not what case law and/or actual implementation indicate that it means. What is actual implementation but "a better historical argument"--unless you mean "historical argument" to strictly refer to 18th century thinking, to parallel Justice Thomas's fatuous comment about how banning marijuana cultivation would have been unthinkable in the early days of the Republic.

    Honestly, this strikes me as the Constitution law version of fanfiction. Are you really teling us what the Constitution should mean? Really?
  7. GrandAdmiralPelleaon Force Ghost

    Member Since:
    Oct 28, 2000
    star 6
    Not that the American Constitution concerns me all that much, but while reading Arendt, I found this funny excerpt and I wondered how this fit with the argument evolving in this thread. Especially since there seems to be a consensus that the 'constitution' of the USA should be constant in an historical perspective...

    Especially seeing the reverence and frequent citations of "what the founding fathers meant ...".


  8. Darth Guy Chosen One

    Member Since:
    Aug 16, 2002
    star 10
    Jefferson was a staunch Anti-Federalist and opposed the new Constitution (favoring the older Articles of Confederation). The only part of the document that he really had anything to do with was the Bill of Rights, and I'm not sure if he even authored any of the amendments.

    But yeah, the Founding Fathers were more divided than most people like to believe.
  9. GrandAdmiralJello Moderator Communitatis Litterarumque

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    Nov 28, 2000
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    I think Madison was behind most of the Bill of Rights. He was the finest legal theorist the Jeffersonians had, besides. Jefferson's contribution to constitutional law involved a very narrow reading of the enumerated powers that almost nobody in the Supreme Court follows these days, except for Clarence Thomas.
  10. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    I think you should only be able to use the Necessary and Proper clause if you can produce a mathematical proof demonstrating conclusively that there are no other possible scenarios in all of time/space that under which the government can achieve its stated objective.
  11. Alpha-Red Force Ghost

    Member Since:
    Apr 25, 2004
    star 5
  12. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    I believe this may be incorrect. Madison, if IIRC, was actually against a bill of enumerated rights, fearing that they would be strictly interpreted to exclude all others not specifically mentioned. His remedy for this was to add the 9th Amendment to the Constitution.

    Interestingly enough, that particular amendment is shied away from in the overwhelming majority of court decisions, as there seems to be a consensus amongst the judiciary at almost all levels that citing it would open a Pandora's box of "unenumerated rights" being unleashed on the American people.

    Correct if I'm wrong here, everyone. I'm just quickly posting and don't have time at the moment to research this point in any real detail.

    Peace,

    V-03
  13. DarthIktomi Jedi Master

    Member Since:
    May 11, 2009
    star 4
    Well, Congress is granted the ability to regulate trade between states and with foreign nations, which is practically all trade at this point in time.

    Of course, if you're talking about the "principles", the "intent", do we want to go over Dred Scott v. Sanford or Oliphant v. Suquamish Indian Tribe or any of the other cases of "original intent" basically meaning pulling new laws from some part of the judge's anatomy? And of course, I'm sure the Bush appointees feel the same way Bush does about Indian rights, that it's a state issue. (The Constitution explicitly says otherwise.)

    Of course, the "activist judge" meme from conservatives began with integration, so...
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