That it was 5-4, is Scary!

[Diuretic]

Originalist is the word most commonly used to describe my belief in interpretation regarding the Constitution. I think our Founding Fathers spent an enormous amount of time to get it right, and their thoughts and views on the matters were well documented. To attempt assigning different meanings to things they phrased a certain way in 1760, is not the definition of "interpret" as far as I am concerned. I was appalled at the 5-4 decision precisely because the dissenting view of Justice Stephens was missing any substantive documentation from any of the founding fathers, and relied on a mere "historic belief" in what the 2nd Amendment intended to mean. It was the most absurd dissenting argument I think I have ever read, and it emphasises the point being made in the Originalist vs. Activist judges debate.

I'm going to preface my remarks by saying that I'm not an American so I accept that - even though Damo is okay with the freedom of expression thing - I have no moral claim to comment on your country's Constitution. Having said that I have no desire to offend for its own sake, that's purely juvenile (well no desire to offend on the Constitution at least).

But (yes, here it comes, the great "but...") it seems to me that even a written Constitution has to be interpreted in the light of contemporary society. I can't prove it but I feel sure that the Founders - who were extremely intelligent men, very well educated - were setting the sails for the new nation and would have been okay if the new nation discarded the sails and went for steam power and later for other more efficient forms of power. The USS Constitution* might be under sail still but her contemporaries are forging ahead on more than wind power.

Okay, I extended the metaphor until the damn thing broke but anyway, that's my point. The Constitution has to be interpreted to fit contemporary society.






*And a fine vessel she is too, was lucky enough to have trod her decks as a gawking tourist

 

[Diuretic]

Socialism does not play well with Democracy. Socialist systems generally require authoritarian control by the state, since the state is the provider of all social needs. This power can be hard to maintain in a democracy, which is why you see very few true socialist democracies. It is inherently impossible for Socialism to flourish in a Capitalist Democracy, as Capitalism is the direct opposite of Socialism.

Personally I think the control economy thing is flawed, I much prefer a diluted form, market socialism. I'm not an economist but it does seem to me that the mechanism of the market (the laws of demand and supply for example) can be a useful thing to guide the economic planners but a firm hand on the tiller isn't such a bad idea. But that still doesn't mean that a socialist economy can't be run in a democratic manner. Sri Lanka is by virtue of its constitution a socialist republic and (apart from the ethnic troubles with the Tamil Tigers) it seems to be ticking along okay. And I know that a capitalist economy can be run in an authoritarian state, it's called fascism or state capitalism (eg USSR).

My point is that they're different, that's all. A specific economic function can exist regardless of the stated political system it works within.

Anyway, when all's said and done we have to remember an economy is supposed to serve its community, not the other way around, but that's another topic I suppose.

 

[Good Luck]

I'm going to preface my remarks by saying that I'm not an American so I accept that - even though Damo is okay with the freedom of expression thing - I have no moral claim to comment on your country's Constitution. Having said that I have no desire to offend for its own sake, that's purely juvenile (well no desire to offend on the Constitution at least).

But (yes, here it comes, the great "but...") it seems to me that even a written Constitution has to be interpreted in the light of contemporary society. I can't prove it but I feel sure that the Founders - who were extremely intelligent men, very well educated - were setting the sails for the new nation and would have been okay if the new nation discarded the sails and went for steam power and later for other more efficient forms of power. The USS Constitution* might be under sail still but her contemporaries are forging ahead on more than wind power.

Okay, I extended the metaphor until the damn thing broke but anyway, that's my point. The Constitution has to be interpreted to fit contemporary society.






*And a fine vessel she is too, was lucky enough to have trod her decks as a gawking tourist

Societies evolve, and circumstances change. Sometimes those changes require a change in the way a society guides itself.

And that is the reason the Constitution has an amendment process. "Reinterpreting" the constitution to account for changes in society only results in the government finding excuses to ignore it. And down that path lies eventual totalitarianism.

If there is a profound enough change in society that some part of the constitution no longer works for that society, then the proper course is to write and ratify an appropriate amendment to change the constitution to match the needs of the changed society. We have done it successfully before.

The original constitution defined blacks as only a percentage of a person, and that was limited to census for the purpose of distributing congress seats. We changed that.

Our society once allowed slavery. We changed that, and changed the constitution to reflect the changes caused by ridding ourselves of slavery. Then we changed it even more to assist in ridding ourselves of government mandated racism, government mandated sexism, etc.

As such, reinterpreting is NOT the proper method to account for changes in society. That method allows too much authority in the body whose job it is to provide those interpretations. Using such a method would also cause a significant instability as which political philosophy holds the majority of bench seats changes.

Sometimes new circumstances crop up as society changes, and raises the question of how the constitution applies to new circumstances. That is the time for the Supreme Court to take action. But their job is to interpret how the constitution applies to the new circumstances, NOT to figure how the new circumstances should change the Constitution.

 

[Good Luck]

Contrary to what you think, I am not an extreme right winger, I am fairly moderate. The nation seems to be full of idiots like you who can't make up their mind whether they support Socialism or Democracy! You want to try and take these idiotic positions in the middle and for most of the arguments between Socialism and Democracy, there is no freakin' middle!

Now, this moderate middle of the road, 'reasoned thinker' approach you are taking, it sounds very nice and non-threatening to the liberals, so they will all pat you on the back and make you feel like you are such a big man for blasting Bush and being a Maverick like McCain, but the nature of the liberals game is incrementalism. A little chip here, a little chip there, and viola, we have a Socialist nation one day, while you sit around with your thumb up your ass trying to be Mr. Nice Guy to them!

The only possible hope our SCOTUS maintains originalist judges is with a McCain presidency, and THEN it's not a guarantee... that bastard would nominate Hillary to get the Libs to praise him... come to think of it, he's just like you! But we already know what kind of ACLU Pro-Abortion lunatic we will get from Obama, so we have to hope there is a chance with McCain.

You call yourself a moderate, then claim there is no such thing because moderates are too busy sucking up to liberals.

Yes, you are an extremist. In the first place you seem to look at all issues from a party line, them or us POV. You can only discuss a topic politely when people agree with you, and resort to insults for anyone who disagrees. That is a common symptom of extremists no matter which end of the spectrum they favor.

You claim there was no dispute in 1780s about the Bill of rights. (Actually you say 1760, which was before they even agreed to write the Declaration of independence....) That statement is made in utter ignorance of the history of the Constitutional Convention, and the state processes that eventually ratified the Constitution and the Bill of Rights.
(Clue: A lot more people were involved that Jefferson, Adams, Henry, Franklin, Madison, etc.)

If I was playing "Mr. Nice Guy" to the liberals I'd still be in, and working for, the democratic party. But I am no longer a member of the democratic party because I refused to blindly follow their lead. I prefer the democratic party in several areas of economic and social issues because they at least acknowledged there are problems that need to be addressed, while the republican party has a strong tendency to ignore or minimize those problems. But I disagreed with the way the democratic party proposed (proposes) to address the problems, pointing out how they tend to lock society in to and endless cycle instead of actually fixing the problems. And by speaking out against their methods (even while agreeing with the need for something to be done) I was, for all practical purposes, unceremoniously kicked out. So much for the democratic party.

Go look at how I am treated by many of the liberals on this board in other threads. And look at how I respond, then tell me I am being Mr. Nice Guy.

I am not a republican because I refuse also to blindly follow their lead. And also because they still minimize many significant social problems, pretty much refusing to address them, but rather using a social/economic Darwinism approach.

Both parties are moving farther from the principles our founders built this society on, and further outward toward the respective extremes of the political spectrum. I refuse to follow because either end will result in corruption of the country and its principles.

Being moderate does not mean being in the middle of issues without opinion. Nor (especially) does being moderate mean "playing nice" with liberal extremists. Being moderate means belief in solutions to problems which do not involve the answers coming from either extreme. You haven't a clue what moderate is, so it is doubtful you hold to a true moderate political philosophy.

Some issues are true dichotomies, in which case it is not possible to have a moderate view on those issues. The issue of abortion is an example, as it is either morally acceptable to legally kill unborn children or it is not. But dichotomous issues are very rare. MOST issues have multiple view points, and multiple potential solutions to the problems presented by those issues. Such issues include international trade, economic inequality between races, the increasing disparity between the wealthy and the working class, how to handle the oil crisis, how to approach international and domestic terrorism, etc. etc. etc.

The democratic party tends to support the liberal extreme on such issues, in many cases supporting ideology that can be found in the platform of the American Socialist Party of the 60s. The republican party has, over the last couple decades, gravitated to a conservative authoritarian extreme, and in the process started supporting their own policies which are contrary to our constitution specifically, and our society in general. Both extremes are dangerous to the society founded by the Constitution.

But I agree with you on one thing: who is next president will have opportunity to significantly affect the tone and direction of SCOTUS. And on that issue I trust McCain more than Obama to appoint moderate justices who will support the Constitution as written, and not try to interpret it to match their political ideals. I also trust McCain over Bush and his ilk for the same reason.

 

[FUCK THE POLICE]

Waterhead, Socialism is not compatible with Capitalist Democracy. And I never called GoodLuck anything, much less a Socialist. You need some reading comprehension lessons, seriously!

There is no middle of the road because the issues all have a Socialist or Capitalist solution. There is simply no way to combine both and expect a viable solution, and in most cases it will only compound the problem.

Sure if you expand the definition of democracy to mean capitlalism socialism is incompatible but the most simple and accurate of definitions do not.

And the world isn't split between socialist and capitalist. You can have intervention in the economy that has absolutely nothing to do with bridging the gap between the haves and have nots.

 

[FUCK THE POLICE]

I'm going to preface my remarks by saying that I'm not an American so I accept that - even though Damo is okay with the freedom of expression thing - I have no moral claim to comment on your country's Constitution. Having said that I have no desire to offend for its own sake, that's purely juvenile (well no desire to offend on the Constitution at least).

But (yes, here it comes, the great "but...") it seems to me that even a written Constitution has to be interpreted in the light of contemporary society. I can't prove it but I feel sure that the Founders - who were extremely intelligent men, very well educated - were setting the sails for the new nation and would have been okay if the new nation discarded the sails and went for steam power and later for other more efficient forms of power. The USS Constitution* might be under sail still but her contemporaries are forging ahead on more than wind power.

Okay, I extended the metaphor until the damn thing broke but anyway, that's my point. The Constitution has to be interpreted to fit contemporary society.






*And a fine vessel she is too, was lucky enough to have trod her decks as a gawking tourist

I disagree with notion that the very meaning of the constitution can change, but I also disagree with the line of thought that we must think as if it's 1776. The meaning of "Cruel" hasn't changed, but what society considers cruel has. And it's idiotic to try to stick to a 1776 definition of cruelty.

 

[Good Luck]

I disagree with notion that the very meaning of the constitution can change, but I also disagree with the line of thought that we must think as if it's 1776. The meaning of "Cruel" hasn't changed, but what society considers cruel has. And it's idiotic to try to stick to a 1776 definition of cruelty.

In some ways that is correct, and in some ways, not so much. If the common use definition of an important word in the constitution changes over 200 years, then it is essential we return to the 1780s definition of the word in order to ascertain the intent of that section of the Constitution.

For instance, the meaning of the word "militia" has changed significantly. Today the word militia means a formal part of the ready reserves of the U.S military, primarily operated by the states. In 1780 the word militia referred to private citizens who were armed. Militia of the 1780s had no formal relationship with the military. If a call to arms arose, the militia man of the 1780s could decide at that time to not participate.

The important distinction is the militia person of today is part of the military, operated by the states, but ultimately controlled by the federal government. The militia man of 1780 was a private citizen with a loose association with the state government (they agreed to place their names on a list of men who could be asked to serve if a call to arms arose) an NO association what so ever with the federal government.

The writers of the constitution, especially the anti-federalist faction, did not trust a federal government with a standing army. So they made certain that the people would remain armed to counter any INTERNAL threat posed by the federal standing army.

Thinking of militia as part of the military puts an entirely different - and incorrect - slant on the first phrase of the 2nd amendment. Therefore to garner the true intent of the 2nd amendment, we must return to the 1780s meaning of the word militia - armed private citizens.

OTOH, when we return to the 1780s definition of cruel with respect to punishment, we will find the 1780s would have allowed types of punishment we find abhorrent today. However, in examining the original meaning of the word in context of the 1780s, we can still determine the INTENT of the prohibition - to prevent being unnecessarily cruel in meeting out justice - thus apply it to modern times, and legitimately limit punishment within a more narrow set of parameters than would have existed in 1780.

But in the end, regardless of whether we find a changed definition changes the meaning of an important phrase and lose its intent, or whether we find a changed definition does not truly affect the intent of the phrase, it is always important to examine the Constitution within the context in which it was written. Then if we find the intent is no longer intact due to changes in society, we apply the amendment process so that it does match the needs of modern society.

If we want to "reinterpret" it according to modern context, we may as well throw it out.

 

[Timshel]

The funny thing about all of this is that the dissenting justices implicitly recognized that individuals have the right to own guns but that state and local governments have the ability to regulate that right. Given that the Bill of Rights applied only to the federal government at the time of the signing of the Constitution, I think the founders would probably have agreed with the minority.

Yes, but the 14th amendment changed that. Would you be okay with states violating the 1st. The 2nd should be subject to strict scrutiny, just as the first. The DC law does not even come close to meeting that.

 

[Timshel]

I disagree with notion that the very meaning of the constitution can change, but I also disagree with the line of thought that we must think as if it's 1776. The meaning of "Cruel" hasn't changed, but what society considers cruel has. And it's idiotic to try to stick to a 1776 definition of cruelty.

I don't disagree. But, the best representation of what "cruel" means is the representatives of the people. That is, their legislators. Not appointed members of a court.

 

[Timshel]

Dixie, you are on crack if you think that protect the court shit is going to work again. McCain hates the constitution, evidenced by his attacks on free speech and attempts to regulate things well outside of federal control.

 

[ib1yysguy]

Roe v Wade was activism. This was not. This is the world Dixie lives in.

 

[FUCK THE POLICE]

I don't disagree. But, the best representation of what "cruel" means is the representatives of the people. That is, their legislators. Not appointed members of a court.

One states definition of cruel may be an extreme outlier (Louisiana, for instance, was the only state with a child rapist on death row), but since the constitution is the law of the land, and individual rights trump states rights, the court may step in now and again to force a state into the national consensus on cruel. Like, if one state like Mississippi had a 90% approval rating that hanging wasn't a cruel punishment for being black, and everyone else in the nation disagreed, then the national consensus would take precedence.

Also, our electoral system basically doesn't represent the people worth shit. Moral panics and sensationalism are the law of the land in legislatures and courts can oftentime bring them better in line with the will of the people than allowing them to run amok.

 

[Dixie - In Memoriam]

Dixie, you are on crack if you think that protect the court shit is going to work again. McCain hates the constitution, evidenced by his attacks on free speech and attempts to regulate things well outside of federal control.

Call it whatever you like, I think the fact that the SCOTUS nearly abolished our 2nd Amendment, is obvious to everyone now. I think people are now able to understand the terms "originalist" and "activist" and see what they mean.

Ironically, it probably will not matter who we elect president. With Obama, it's a guarantee we get another activist, with McCain, who knows... we may get an originalist. My point is not to garner votes for John McCain, it is to raise awareness about this alarming trend of our courts, especially the Supreme Court.

Now, Liberal mush-brains don't see it as a problem right now, they are benefiting from the activism. What happens in 20~30 years when neocons stack the court with their own activist judges and your left-wing sacred rights start to vanish by judicial fiat? Just how fucking loud do you think the screams will be then? Oh, I can just hear the fake moral outrage, "how dare those neocons decide our rights without giving us a vote?" When the shoe is on the other foot, the liberals will be screaming to no end about this.

 

[Timshel]

Call it whatever you like, I think the fact that the SCOTUS nearly abolished our 2nd Amendment, is obvious to everyone now. I think people are now able to understand the terms "originalist" and "activist" and see what they mean.

That was never a real danger. They avoided the cases previously and allowed local and state powers infringe on our rights. They heard this case because they were ready to stop that. I doubt this case would have been heard unless the court had a sense that they were going to rule against DC.

 

[Timshel]

One states definition of cruel may be an extreme outlier (Louisiana, for instance, was the only state with a child rapist on death row), but since the constitution is the law of the land, and individual rights trump states rights, the court may step in now and again to force a state into the national consensus on cruel. Like, if one state like Mississippi had a 90% approval rating that hanging wasn't a cruel punishment for being black, and everyone else in the nation disagreed, then the national consensus would take precedence.

The court would not stop them based on cruel and unusual.

If Mississippi is so out of step (not with your silly example but on dp) then congress should step in, not the courts.

Also, our electoral system basically doesn't represent the people worth shit.

Sure, but it does a much better job than an appointed court.

Moral panics and sensationalism are the law of the land in legislatures and courts can oftentime bring them better in line with the will of the people than allowing them to run amok.

Yeah, why not just advocate a dictatorship. Moral panics and sensationalism are certainly a hazard, but legislatures on the whole, are fairly slow moving beasts. A court or one individual could just as easily be swayed by bad information.

There is no consensus in this country that the death penalty is cruel. I have not looked at any polls recently but I am guessing most people (or at least a very large minority) are comfortable with the death penalty.

 

[Timshel]

Roe v Wade was activism. This was not. This is the world Dixie lives in.

That would be a much more correct world than the reverse. Roe v Wade's basis is tenuous at best while the right to bear arms is clearly protected by the second amendment.