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Countertrey
the 'mudge
Joined: 09 Jan 2004
Posts: 12767
Location: Curmudgeon Corner, Maine
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| Posted: Fri Oct 14, 2011 11:53 am Post subject: |
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| Irn-Bru wrote: | | I don't think the judges you have in mind think they are appropriating new powers. (Or at least they don't most of the time.) They usually see their ruling as deriving from some broad interpretation of a statement. (I.e., the commerce clause.) |
Which goes back to my awareness of the framer's intent to create a document that is understood by all... The Commerce Clause means what it says. It is not for anyone to twist, and contort the intent.
It arose in response to one of the principle flaws of the "Articles of Confederation"... the lack of any Federal authority in preventing discriminatory and hostile commerce practices between states, and between US states and foreign governments. States were able to apply tariffs to goods and products from other states. States were free to pressure or provide advantage to offshore entities that might place them at significant advantage over other US States. It's not at all difficult to see how this would cause tremendous harm to the Union. It was this that motivated the clause... making it pretty clear that a narrow interpretation reflects the intent of the framers.
Regarding the 10th Amendment, Madison's word when he offered it, indicate that he intended that there be no doubt that the authority of the United States government was limited to enumerated powers that are referrenced in the document, that there are no authorized UNenumerated powers...
| Quote: | | I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it. |
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Irn-Bru
FanFromAnnapolis
Joined: 20 Mar 2004
Posts: 10626
Location: on the bandwagon
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| Posted: Fri Oct 14, 2011 2:04 pm Post subject: |
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I don't disagree that you are much, much closer to an original intent reading of the Constitution than the typical judge would use in interpreting constitutional matters today.
My point is that judges think the law requires them not to use a restrictive, original-intent reading of the Constitution. They work off precedents and other mechanisms that break from the principles you are espousing. Is that sacrificing legal priorities for political ones? Maybe, but I think the judges see themselves as doing their best to abide by sound legal principles first and foremost. |
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KazooSkinsFan
kazoo
Joined: 05 Sep 2004
Posts: 10021
Location: Kazmania
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| Posted: Fri Oct 14, 2011 2:32 pm Post subject: |
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| Irn-Bru wrote: | | My point is that judges think the law requires them not to use a restrictive, original-intent reading of the Constitution. They work off precedents and other mechanisms that break from the principles you are espousing. Is that sacrificing legal priorities for political ones? Maybe, but I think the judges see themselves as doing their best to abide by sound legal principles first and foremost. |
The most important legal principle is the one I have referred to multiple times, the source of the Federal government's power. The Constitution leaves no doubt that the source of the power is The People. When the Constitution is amended it is through a lengthy process by people directly accountable to the people, the legislatures.
The question of being an Originalist versus someone who thinks the Constitution can be constantly re-interpreted by the courts, which they refer to as making it a "living document," it is not an either or philosophical debate. When judges apply the standard you are stating and that is not directly mappable to the power granted to the government by the people, what is it based on and how is it legitimate if Federal power is based on The People and The People didn't grant the power? It's not.
The other critical thing with the courts is they should be loathe to ever create new Federal powers because they are not answerable to the people. They are appointed and virtually impossible to remove. Their role in Constitutional matters should be specifically to protect the people from the Legislatures ignoring the Constitution, for them to actually be the cause of government confiscating powers from the people when the people did not authorize it and they are not answerable to the people is despotic. |
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Irn-Bru
FanFromAnnapolis
Joined: 20 Mar 2004
Posts: 10626
Location: on the bandwagon
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| Posted: Fri Oct 14, 2011 3:44 pm Post subject: |
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| KazooSkinsFan wrote: | | The question of being an Originalist versus someone who thinks the Constitution can be constantly re-interpreted by the courts, which they refer to as making it a "living document," it is not an either or philosophical debate. When judges apply the standard you are stating and that is not directly mappable to the power granted to the government by the people, what is it based on and how is it legitimate if Federal power is based on The People and The People didn't grant the power? It's not. |
Do judges grant that? They think, for example, that the commerce clause or the welfare clause means they have the powers to rule on those same issues that tenth-amendment supporters say isn't given to them. We are back to the same question. |
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KazooSkinsFan
kazoo
Joined: 05 Sep 2004
Posts: 10021
Location: Kazmania
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| Posted: Fri Oct 14, 2011 4:42 pm Post subject: |
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| Irn-Bru wrote: | | KazooSkinsFan wrote: | | The question of being an Originalist versus someone who thinks the Constitution can be constantly re-interpreted by the courts, which they refer to as making it a "living document," it is not an either or philosophical debate. When judges apply the standard you are stating and that is not directly mappable to the power granted to the government by the people, what is it based on and how is it legitimate if Federal power is based on The People and The People didn't grant the power? It's not. |
Do judges grant that? They think, for example, that the commerce clause or the welfare clause means they have the powers to rule on those same issues that tenth-amendment supporters say isn't given to them. We are back to the same question. |
It's not about what they "rule on," it's about what they rule. So for example the equal protection clause does not apply as written to what different people "want" and it's not a general "fairness" clause. It says for example government cannot have black and white fountains where equal men have the same law applied to them differently. If Steve is gay but other then that like me, he and I can marry the same people. The law is applied consistently. That is the power the people gave to the federal government to enforce in the 14th amendment. The people did not cede the power for the courts to decide what's fair and decree it and no amount of case law can make it a power the people ceded.
For the commerce clause, the people ceded the power to regulate interstate commerce. It does not give the federal government any intrastate power, period, it's not there. Case law in no way can make it a power ceded by the people, only the constitution does that. That is why it's an absolute measure. Ruling on case law which is not directly supported by the constitution is the courts creating power by ruling on their own rulings, which means that the courts are the true source of those powers, and that is not the premise our country is built on. |
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Irn-Bru
FanFromAnnapolis
Joined: 20 Mar 2004
Posts: 10626
Location: on the bandwagon
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| Posted: Fri Oct 14, 2011 5:09 pm Post subject: |
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I understand your side of the argument; I don't think you and CT need to keep trying to convince me that the original intention wasn't for the powers to be as broad as they've become. 
I think you are mistaking me for someone who thinks all of this is a good thing. All I'm saying is that judges today, following the prevailing legal philosophy, take the words of the Constitution, not necessarily the intent. And they often have 200+ years of precedents to back up what they say, too. In other words, they've taken a specific legal path, not so much a political one. |
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Deadskins
JSPB22
Joined: 02 Jul 2004
Posts: 14709
Location: Location, LOCATION!
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| Posted: Fri Oct 14, 2011 10:03 pm Post subject: |
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| Irn-Bru wrote: | I understand your side of the argument; I don't think you and CT need to keep trying to convince me that the original intention wasn't for the powers to be as broad as they've become.
I think you are mistaking me for someone who thinks all of this is a good thing. |
Thank you. That's exactly what I was trying to say in my last post. |
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Countertrey
the 'mudge
Joined: 09 Jan 2004
Posts: 12767
Location: Curmudgeon Corner, Maine
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| Posted: Sat Oct 15, 2011 10:05 am Post subject: |
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| Irn-Bru wrote: | I don't disagree that you are much, much closer to an original intent reading of the Constitution than the typical judge would use in interpreting constitutional matters today.
My point is that judges think the law requires them not to use a restrictive, original-intent reading of the Constitution. They work off precedents and other mechanisms that break from the principles you are espousing. Is that sacrificing legal priorities for political ones? |
Clearly, there is no clause the Constitution that permits Federal judges to legislate. The role of each branch is clearly defined. If there is a political need that is not adequately addressed by the Constitution, there is, within the document, a means of making a correction... it is not for the Court to legislate from the bench. | Quote: | | Maybe, but I think the judges see themselves as doing their best to abide by sound legal principles first and foremost. |
The problem is, there is already a mechanism to make changes (to the Constitution: amendment) that precludes legislation by court fiat. Why wouldn't the abuse of judicial power that usurps the designated process violate the legal principles of anyone who is sworn to defend the Constitution of the United States? Their motives, therefore, are purely political when they dictate law. They can get away with it because the Congress refuses to hold them to account.
Last edited by Countertrey on Sat Oct 15, 2011 10:16 am; edited 2 times in total |
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KazooSkinsFan
kazoo
Joined: 05 Sep 2004
Posts: 10021
Location: Kazmania
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| Posted: Sat Oct 15, 2011 10:08 am Post subject: |
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| Irn-Bru wrote: | I understand your side of the argument; I don't think you and CT need to keep trying to convince me that the original intention wasn't for the powers to be as broad as they've become.
I think you are mistaking me for someone who thinks all of this is a good thing. All I'm saying is that judges today, following the prevailing legal philosophy, take the words of the Constitution, not necessarily the intent. And they often have 200+ years of precedents to back up what they say, too. In other words, they've taken a specific legal path, not so much a political one. |
Of course I know you're not arguing for the system. My brother and I agree on our political views more then anyone I know and yet we have the best debates on what are actually pretty narrow points. I took our discussion more that way. I think you and I agree on far more then we disagree on. In this case, what this sentence means comes down to the question. For these I'm particularly referring to Constitutional issues.
| Irn-Bru wrote: | | they've taken a specific legal path, not so much a political one. |
When you say not a political one, I'd agree in that they are justifying their rulings within how our legal system works. I do think their political views (both sides) are a major motivator though for "what" they are ruling. They chose their answer then justify it through the legal system and there are so many contradictory rulings on every subject you can justify pretty much anything. There is no other way to arrive at far to many of heir rulings. When you read opinion after opinion from the Supreme Court that is massively contrived, it's clearly a rationalization for their argument and not why they believe it. And that they can't say why they believe it and have to present a massively contrived justification shows that their view was chosen before the argument. And that it was massively contrived shows the view was lame and unsupportable by the Constitution.
But more to the heart of my argument is what you mean by the word "legal." If by "legal" you mean "legal system" or "accepted practice in our legal system" then I agree with you, per above which is why I started with that. But it's clearly not constitutional and therefore it is not legal in that it's unambiguously wrong. And the reason for that is that the power was not ceded by the people to government. There is no constitutional authority for them to do that for that specific reason. |
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welch
Skins History Buff
Joined: 10 Jan 2004
Posts: 4665
Location: New York, NY
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| Posted: Sun Oct 16, 2011 7:53 pm Post subject: |
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| KazooSkinsFan wrote: | | Cappster wrote: | | KazooSkinsFan wrote: | | What do you mean by "society?" |
Religion as it relates to government. I view it like this: Religion can be the guiding light over our personal lives, but it shouldn't be the hand that guides government. |
I gag on the society = government, but that's another subject. It is neither government's job to force religion on anyone nor their role to protect people from it. |
Just being late to the discussion, note that when Aristotle ("Politics") talks about the "polis" he means both a social and a political entity...in our jargon.
I think "society", as in "the social world" was not mentioned until the 19th century...right alongside "political economy" and "race"....now that I think about it. (Boswell quotes Samuel Johnson joking about "the Scottish race").
We still know what Aristotle meant: "humans cannot live outside the polis; to do so, you have to be a god or an animal. Something greater than or less than a human being". Means pretty much the same as "society" today, including Aristotle's assumption that humans needed to organize themselves in some such way.
Hobbes argues the point: without a political society, life would be "nasty , brutish, and short...a war of everyone against everyone else"...more or less (I doing this from memory).
Hobbes lived as England tried to adjust to the Reformation: it was assumed that a state religion was a necessary part of government-society. Therefore, how could England maintain a national church, loyal to the monarch, if thinkers were allowed to organize different views inside the one big church.
We live in the country founded by the radicals, the opposition, the groups that between 1640 and 1740 or 1780 discovered that it was hopeless and bloody and pointless to enforce religious uniformity on one colony or on the entire group of colonies.
Key time-point: Samuel Adams asks a Reverend Duerr (sp?), an Anglican priest, to open one of the first two Continental Congresses with a benediction. Moderates, meaning those against rebellion, had suggested that Adams and his Massachusetts delegation represented bigots. Richard Henry Lee was delighted...Lee, a Virginia Anglican and co-leader with Adams of the rebel faction, suggested that Washington should be chosen to lead the militia that had gathered around Boston after Concord and Bunker Hill.
After that, it seemed irrelevant and silly to insist that Americans agree on points of theological doctrine.
For some reference, you can look up the fundamental points of the Church of England, meant to be a broad as possible but too narrow for Americans. |
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