You're not getting it. It's about us, not them.
Antonin Scalia
- Thread starter RJF
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You're not getting it. It's about us, not them.
Miggs
Well-Known Member
It doesn't make us any less of a people imo. It makes us wiser and less naive imo.
♪alt13
Well-Known Member
The problem with this is assuming there was a single "originalist's view" shared by the Founding Fathers. There were constitutional interpretation disagreements among the founders before the constitution was even adopted by the states.
D
Deleted member 848
Guest
No, it shows that your sentence was awful grammatically. But hey, blame it on my reading comprehension.
Damn Canadian education obviously.
Nope, it's grammatically sound.
nah, there's tons of info on it. It's actually quite a massive debacle.
EDIT: thanks Siro.
D
Deleted member 848
Guest
Some hilarious responses to the CIA report:
RandyForRubio
Well-Known Member
Fine. You're right Dala. Using the personal pronoun "he" in reference to a person and then going to an impersonal pronoun in the same sentence makes sense. You win, you're right. And this is a waste of time.
I absolute and forever agree with this as stated, without any revision.
Once we tolerate a State arrogating to itself the power to define acceptable and unacceptable "persons", creating classes with special rights or no rights, we have no rational basis for calling ourselves human beings with any rights at all.
I might be pretty conservative, but I vehemently disagree with the Supreme Court having the power to define the Constitution except on interpretation of Legislative Acts or the Constitution itself. All governments must be limited to delegated powers, with those powers coming from the people governed, and not some special set of elites or financially powerful or intellectually or politically powerful persons.
We as individuals have the innate right of life and therefore of defense of our lives and property. If we are attacked individually we have the right to effective defense. If we as a nation are attacked, or declared as subject to war or overthrow of our government, we have the right to effective defense nationally, including any terrorist organization. Acts of such warfare are our right, and those who declare themselves against our existence or our rights, whether they are Marxists or Islamicists or a horde of aliens coming against our borders we should defend ourselves and our territory.
If we are unclear on these points, we endanger ourselves, our communities, and our nation. Of course we should first seek humane resolution of every situation, and not just gun down starving or otherwise desperate humans seeking but to save their own lives. And anyone we detain, or capture, should have all the human rights we claim for ourselves, and torture is an abomination and an affront to all civilization. Once anyone raises their hands in surrender, they should be accorded every human right we cherish for ourselves.
No damn torture, and no more of these concrete prisons where the food is detestable, and some concessionaire who has bribed the officials to get the contract can hike the prices above competitive prices in our markets.
For such a strict constitutionalist, he managed to vote in favor of Reich vs. Gonzalez which affirmed that prohibiting weed falls under interstate commerce. Now I'm no legal scholar and just a common idiot, but if you can tell me how growing a weed plant in one state and not selling it is interstate commerce I'd be curious to know how, considering there is no interstate or commerce involved in that instance at all. This is the clause that allows the federal prohibition of weed to be allowed, since Congress has the authority to regulate interstae commerce. Otherwise, the 10th Amendment would apply and it would be up for the states to choose.
There were some points of general agreement, and others were agreed to on the principle of compromise. Some states held their noses and approved the Constitution as it was then, supporting the claimed rights of other States to allow slavery and human trafficking, but they did secure an agreement that importation of slaves would cease in 1820, pointing to a view that slavery eventually would need to end.
But for European-immigrant-Americans to hold views that their rights were somehow relevant while excluding American Indians or Blacks was always a glaring inconsistency of principle. At the time, it seemed necessary to focus on the rights of "subjects of the Crown" to affirm their innate right to be independent and to become sovereign citizens on their own humanity, but we owe thanks to many blacks who fought with us for "our" freedom, and some of the Indians, though most sided with their trading partners the British.
I think if you want to make a person who is your captive uncomfortable in a way that takes special effort you are torturing them.
I don't think there is a gray area.
I think if you take a prisoner you do what is necessary to contain them. If you go beyond that in an effort to gain information you are torturing them.
I'm pretty simple on this one. I get that some might want wiggle room. I don't grant it. Our enemies are not "bad guys" they are humans. They are 99.9% the same as you or me. If we must we kill them. Not because they are evil, but because they stand in our way. We have a mission. I die for our mission or they die for our mission. I choose me. I kill them.
I die before I torture. I let my family die before I torture. I let your family die before I torture. I let America be conquered before I torture.
It's not gray. Not for me.
I die before I support torture.
fishonjazz
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Is putting someone in the hole torture? (You would probably say no since prisons currently use that method all the time. But what if you dump them in the hole and leave them there for 10 years? I would consider that torture. So there is a gray area of length of time in the hole for what constitutes torture.)
Is electrocution torture? (You would probably say yes it is.... So what about tazing someone? That's electrocution, just with lower voltage. So there is a gray area of how much voltage can you use before it's torture)
Is using mace on someone torture?
Is starving someone torture? (I would think that starving someone for a day isn't torture, maybe two days is? There is a length of time that is gray)
Waterboarding is torture right? What about spraying someone with a powerful hose though? I have seen cops do that to disperse crowds.
Is punching someone torture?
How about keeping lights on at all hours and there being noise at all times?
I mean if all this is considered torture and you won't do any of it then if I were a prisoner of yours and I know you wouldn't go very far to punish me when I mis-behave then I would try to hurt my guards any chance I got knowing that the repercussions would be mild.
You can be disciplining an inmate and everything is going fine, no torture happening, and then there might reach an amount of time that the discipline goes on for where you believe it goes from discipline to torture. Or an amount of force/pain indicted occurs where is goes from discipline to torture.
Those lengths of time and amount of force might be different for different people. Gray area.
One man's discipline/punishment is another man's torture.
One man's torture is another man's discipline/punishment
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Fwiw it took almost 8 months for Kennedy to get sworn in following Lewis Powell stepping down, due to the failed nomination of Bork. Not quite the same situation, but worth noting.
J
JAZZGASM
Guest
Scalia would even agree with you. However, his view is that you can come to a closer certainty to original intent than you can interpret what our founding fathers would have meant today. The first is based on historical records, and there are enough to generally come up with a strong consensus. The other is based on conjecture.
J
JAZZGASM
Guest
Scalia went off of past precedent in that case. There was a case in the 30s or 40s (Filbur, Wilbur, Filbert, I can't remember the name) that gave Congress power under Interstate Commerce to regulate one persons wheat field that was only used for himself. My grandparents had the Government come and kill some of their cattle meant for personal use under the same principles back in the 30s. Don't blame Scalia for following the law that was already there. He actually limited Interstate Commerce in many cases, but due to the similarity to the past case law, I believe he felt he had to rule that way.
Edit: I looked up the older case, Wickard v. Filburn.
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One issue that comes up with judicial nominations is that a judge may not have ever made a ruling on a particular topic so it can be difficult to ascertain how they might vote when presented with a specific case. Their writings on past decisions are studied for insight into how they might rule on various issues, but it still can be a bit of a crapshoot.
We can't blame Congress because Congress does not have the power to amend the Constitution. It can (with 2/3 majority vote) propose amendments to the Constitution, but those must be ratified by 3/4 of the states before they take effect. It's a pretty damn difficult thing to do.
Here's a fact for you: Of the thousands of proposals that have been made to amend the Constitution, only 33 obtained the necessary two-thirds vote in Congress. Of those 33, only 27 amendments (including the Bill of Rights) have been ratified. The success rate of a proposal to become a ratified amendment is less than 1%.
https://www.constitutionfacts.com/us-constitution-amendments/proposed-amendments/
J
JAZZGASM
Guest
Yes, I knew this. What you may not know is the majority of these unsuccessful proposals never make it out of Congress, so yes I do blame them more than the Supreme Court. It shouldn't be easy to change the Constitution. It was designed this way for a reason. And Judicial activism erodes the protections that were put in place to protect the Constitution.
♪alt13
Well-Known Member
I would torture to save my family(not yours though sorry) but I am a man not a state. I can't imagine I will ever have to.
♪alt13
Well-Known Member
Federalist Paper No. 78
Notice that when Hamilton compares the Constitution to legislative law he frames the Constitution as "the intention of the people". He does not refer to it as representing the intention of the founders or even as they were original intended.
*It is important to recognize that when he says "the intention of the people" he is not referring to democratic people but to republican people(<not the parties D&R, the concepts). All people are represented by SCOTUS no matter how minor their voice. Democracy is exercised in the legislature.
J
JAZZGASM
Guest
Funny you should mention the Federalist Papers. These passages were largely written as a debate between Hamilton and Brutus. Even Hamilton conceded that no federal judge had the legal authority to impose his will on the people in defiance of the Constitution:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ...
Regardless, if you know the history of the federalist and anti-federalist papers, while helpful to get an idea of thoughts during the period, they were largely debate materials from a few parties. They have pertinence, but have limited relevance regarding interpretation into the Constitution.
I've been through this debate before and no one has ever given a convincing argument to demonstrate a system of interpretation that is better than originalism from the standpoint of limiting bias. There is no such thing as a perfect interpretation of the law. However, a modern interpretation has a much larger chance for personal bias because there is literally no baseline to perform a litmus test.
No more point debating this on a message board especially when posters either have no idea regarding the historical context of the references they are quoting or they do know and are skewing the truth.
jimmy eat jazz
Well-Known Member
Given that, even assuming an originalist position, there is little in the Constitution that is self-evident in terms of meaning, given the wide variety of circumstances to which it may be applied, such that act of judging what original intent was is itself an act of projecting one's own understanding (informed by one's bias) on the meaning of the Constitution.
I wonder how many of the truly progressive rulings that have extended application of civil rights/liberties would have happened under an originalist interpretation of the Constitution. In my view, some things, such as civil rights/liberties, are too important to be left to state legislatures, which are often dominated by parochial local factions/power structures.
As a practical matter, originalism doesn't work for me. The Founders could in no way anticipate the complex nature of society in modern times, and thus I see it as essential that we can take the general framework laid down by the Constitution and figure out how to apply it to modern situations. I see nothing wrong with this at all, or with 'judicial activism,' which, when invoked, is typically invoked to criticize rulings one disagrees with, as opposed to stating a general and consistent judicial philosophy.
Of course, the risk with judicial activism is that it may swing against your interests at times, but then so might originalism. There's no guarantee either way. For example, I see Citizen's United as a case of 'judicial activism,' which will have the effect of, essentially, disenfranchising votes relative to the power of corporations or large political donors, but it's one I can live with, because, while some might think Obergefell is also a case of judicial activism, it is one I agree with and I that believe is an important extension of civil rights. It's a trade-off, but so are most things.
But then I'm hardly a legal scholar so take all of this for what it's worth.