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Subj: Re: Why Framer's obsession is... a terribel argument.
Posted: Thu May 12, 2022 at 12:43:13 pm EDT (Viewed 110 times)
Reply Subj: Why Framer's obsession is... a terribel argument.
Posted: Wed May 11, 2022 at 10:35:03 pm EDT (Viewed 120 times)
Quote:Let's actually talk about why your framer fetish is not good reasoning.
The word "fetish" seems derogatory somehow. I'm not sure why a point of view can't simply be a point view, rather than a fetish.
What I deem needful is some sort of restrictive principle to be employed against judicial whim. Do you have an alternate suggestion to use in favor of originalism?
I have something to propose.
The Freedoms Amendment
The Supreme Court shall pass no new judgment that decreases or restricts the freedoms of individuals, and shall invalidate any new action of the federal or state legislature which decreases or restricts the freedoms of individuals. No individual shall be understood as having, nor be newly granted, the right or freedom to decrease or restrict the freedoms of any other individual on any grounds whatsoever, including religious.
Quote:1. Let's start with an object lesson, something you can connect to on a personal level. Freedom of Speech.
Quote:I am a big fan of it, and I don't want my state or city passing laws against it. I am sure you are about to say "The First Amendment AS written prevents that."
Quote:Wrong. It says Congress can pass no laws abridging the right. in fact, for much of US history, states could and DID have laws resitting people;s speech, and used tactics to silence critics.
Quote:It was the Supreme Court, at an embarrassing late date, that expanded that right.
That's why we needed, and finally, in 1866, ratified, the 14th Amendment, which says, among other crucial things, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This language made the Bill of Rights binding on the states. That's how inadequacies in the Constitution should be redressed: via the amendment process.
2. What you are suggesting is actually the more radical change.
Quote:How historical do you find the Beatles? Star Wars?
Quote:The idea of Constitutional originalism was not a concept until 1971. A year after the Beatles final album came out. It get really became a major in politics until the founding of the Federalist Society, in 1982. A full two Star Wars movies had come, and the third in production.
Quote:Ironically, this group that claims to be about what the framers intended, are the ones who ruled a militia was not needed for the second Amendment (which, by the way was a state run militia, into a bunch of assholes in the woods), despite the word being present in the Amendment. Because, none of this is based on any type of principle, it is just a lie to shape America how people want, regardless of what American's do.
Quote:This new idea popped up because of the Warren Court, and its expansion of civil liberties and civil rights.
All of that is true. And as I said above, I'm happy to entertain an alternate suggestion for what could operate as a restrictive principle, if you have one. Or we could discuss the one I proposed above: the Freedoms Amendment.
3. You are invoking the Framers, but you clearly do not understand them. I brought up 1803 for a reason.
Quote:American law borrowed heavily from British laws, with some changes. Things like the burden of proof being on the state, the presumption of innocence... HEY! that is not in the Constitution either, by your logic that makes it meaningless as a citizen of the United States...this is not surprising. Most former colonies did this. Aruba's legal system is based on the Dutch for instance... they also include freeing of slaves as part of their Christmas celebration, not relevant, but interesting.
Quote:So, most of their legal scholarship was English in origin, that is where the idea of a living document comes from. It is older than the nation.
Common law. Yes. For example, American tort law is grounded pretty much entirely in English common law.
Quote:Marbury v. Madison, and its decision about the court reinforces that It is why it was common place for the Supreme Court to be a way move the country forward, without new amendments.
Quote:Lincoln even said, "The Constitution is not a suicide pact."
Quote:For most of its history was to interpret the spirit of the Constitution, not the direct meaning. The obsession with literal intent was a byproduct of increased rights most people did not want to lose.
But what was stopping the Supreme Court from playing the opposite role? What stopped them (or what stops them today) from moving the country backward instead of forward?
Quote:4. The Ninth Amendment. The Ninth Amendment states that just because a right is not listed in the Constitution does not mean you don't have them.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Quote:That rights not listed are not the governments to give, but belong to the people. Stating what those rights the American people have, that cannot be afringed upon by government rules, is allowed by the ninth Amendment.
Quote:They are what we call, "unenumerable rights."
The 9th Amendment is awesome. It just doesn't go far enough. The Freedoms Amendment can be viewed as finishing the job the 9th Amendment began.
Quote:The Tenth Amendment talks about "powers" not rights specifically, for states
Unfortunately the 10th Amendment could be construed as granting states the power to regulate childbirth.
Quote:Since you s love looking at the exact wording, you will notice it does not specifically say it being through additional amendments.
I have no interest in granting the states new powers, by Constitutional amendment or any other means. Nor do I want the federal government to get new powers.
Quote:So even this world of direct interpretation, and you have to go by exactly what the framers said... it is till a bad argument.
Quote:They specifically out in an amendment to stop a lack of listing a right in the constitution, from being an excuse for it to not be a right.
That's true. The 9th Amendment is awesome. We just need the Freedoms Amendment to finish the job the the 9th Amendment began.
If you think Roe v. Wade should be kicked down to the states, that is fine. Just don;t use the Framers as your reasoning. it is a bad argument, and contradicted by history. You clearly have no idea how much that strict interpretations would require retrying cases and how self-defeating the argument is.
All it means is this: Wherever the Framers failed to protect freedom, we need an Amendment to redress their error. Or we just need the Freedoms Amendment to ensure for all time that America can never slide into unfreedom. Or maybe we need to do something else, which you will suggest and we can consider.
Quote:I don't love the Supreme Court to a point where I view it a ethereal. There are plenty of rulings I don't like. I think its lack of transparency is kid of disturbing. I think a life time appointment until they decide they are done breeds politicization and could lead serious problems... Brett Kavanaugh is 50,will he have Alzheimer's at 80? Dementia? I don't know, and he likely does not either. It was about getting a judge with certain politics in for a long time.
Quote:However, I also don't by into the 20th century mythologizing of the founding fathers... because that is when it started... and what they did to the letter is what matters. It is a cheap ploy, to play off patriotism, to get people to allow themselves to be screwed over, with no protections.
The Framers were people... who died decades ago. to assume they had a naturally superior state from what they written borders on cultist, especially since they clearly had no problem with a court deciding on improvements. The framers even knew that was the case.
I admire them greatly. They created what has proven to be the most successful constitution in the history of the world, as measured by longevity. But they didn't always protect freedom to the extent I would have liked. For example, we needed to wait until the 13th Amendment for slavery to be outlawed. The Framers were human. They were finite and flawed. They were conditioned by the social milieu of their time. But they were heroes nonetheless. Feet of clay, certainly. But they seem clearly to have tried to step up. They seem clearly to have been the sort of men who would have agreed, sincerely, with the greatest moral exhortation in all literature: "With great power there must also come - great responsibility!"