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A Thought Exercise on Originalism vs a More Activist Approach

The Westminster system has some advantages... but it has disadvantages as well. Either way, though, this is probably a discussion best left to a separate thread.


What are the disadvantages of the parliamentary (not necessarily the Westminster model) system of government ?

Under a parliamentary system, you can have various forms of voting, you can elect your head of state or appoint them through birthright

I cannot think of a single advantage that a presidential system has over a parliamentary system.
 
No, some matter require a national rule, not 50 different ones - abortion and secession would be two such topics.
States have the equivalent to our First Amendment and secession is not condoned if done via levying war upon the Union. States have the police power not the "limited government" of our federal Constitution.
 
States have the equivalent to our First Amendment and secession is not condoned if done via levying war upon the Union. States have the police power not the "limited government" of our federal Constitution.

Something like abortion can't be left to the states, it's too important an issue to allow haphazard law

Secession is not condoned/approved/opposed - the Constitution is totally silent with regard to it.
 
They have nothing to do with a social power of Government over the whole and entire concept of abortion.

The 4th Amendment says you have a right to privacy and that privacy cannot be intruded upon without a warrant signed by a judge based on probable cause.

The Supreme Court quite correctly defines death as the absence of brainwaves in the cerebellum.

Since a fetus does not exhibit brainwaves until about the 22nd week, it is not alive. Effectively it is a brain-dead comatose patient.

States have the equivalent to our First Amendment and secession is not condoned if done via levying war upon the Union. States have the police power not the "limited government" of our federal Constitution.

It's called extra-constitutional powers by your Supreme Court. The President, the Cabinet, the Congress, the Judiciary, the States and the People have all the powers enshrined in the Articles of Confederation, the Declaration of Independence and the Stamp Tax Congress.

Your Supreme Court has so stated.

And, why, yes, those power include overthrowing an unjust government.
 
There's only one militia. All references to the militia within the constitution are singular...

In the 2nd Amendment, "militia" is in the singular because "free State" is in the singular.

It's not my fault you failed 9th Grade English.

Really? What was Jacob Broom's take on the 2nd Amendment? How about Jonathan Dayton?

Why don't you read them and find out?

Yes, and such taxes were struck down by the Supreme Court in Everson v. Board of Education, 330 US 1 (1947).. but the same rationale for the decision in Everson could have been used by a more enlightened Court in 1870, could it have not?

Perhaps.

I mentioned it because the Massachusetts Supreme Court stated that a corporation was a person and thus subject to the church tax.

That's right....I don't believe corporations are people or have the same rights as people.
 
What are the disadvantages of the parliamentary (not necessarily the Westminster model) system of government ?

Under a parliamentary system, you can have various forms of voting, you can elect your head of state or appoint them through birthright

I cannot think of a single advantage that a presidential system has over a parliamentary system.

Like I said, that's a topic of discussion for another thread, Rich.
 
No you can't because of the brief nature of the Constitution and its silence on many matters

You know, it would help immensely if you took some college level courses on government and political science.

Since you'll probably never muster up the courage to do that, I'll explain it to you and the perhaps you'll understand the meaning of the word "elegant."

Let's take the Presidency.

The Framers could have enumerated every right that the President as head-of-State has.

That section of the Constitution alone would be about 19,473 pages.

Get it?

A more elegant way is simply to assume that a President has all the rights a head-of-State has had since time immemorial and then enumerate only those powers that were barred or limited.

Since time immemorial, heads-of-State have had the power to declare war. The Framers decided to take away that right and give it to the People and the States vis-a-vis Congress.

Since time immemorial, heads-of-State have had the right to choose their Cabinets. The Framers limited that power by having the States vis-a-vis the Senate approve the appointments.

Heads-of-State also had the exclusive right to enter into treaties, and the President still does, but that power is checked by the States requiring Senate approval.

Heads-of-State also had the power to levy taxes, but the Framers gave that power to the People via the House.

See how that works? And it works for everything.

Take Ashcroft.

Someone sued saying the Secretary of Defense does not have the power to close military bases. The Supreme Court said they were wrong. A Cabinet member does have that power and even though it isn't spelled out in writing in the Constitution, it is a traditional power of that specific Cabinet office and that power was extant in the Articles of Confederation, the Continental Congress and the Stamp Tax Congress.

Congress has all the traditional powers the Roman Senate and the Greek democracies had. Most of the powers enumerated are powers a head-of-State had but were given expressly to Congress by the Framers or split between the two houses in keeping with a bicameral legislature.

If the Framers were to enumerate every stinking power, your Constitution would be a 144 volume set of more than 100,000 pages.

For instance, did the framers ever envision secession by one state or more ?

The People have that right under the Continental Congress and the Stamp Tax Congress.

Under a parliamentary system, you can have various forms of voting, you can elect your head of state or appoint them through birthright

I cannot think of a single advantage that a presidential system has over a parliamentary system.

That's because you allowed yourself to become mired with only 2 political parties.

Under your Constitution, it is the Speaker of the House that was supposed to have the real power. Weak politicians handed off most of their power to the President over the years, in part because a lot of them early on were monarchists and would have preferred a king to a president.

Your system is perfectly capable of handling multiple parties. If you had 12 political parties, the Speaker would be chosen by a coalition of parties, just like in a parliamentary system.

Your system is screwed up because you allow the sovereignty of States to be egregiously violated and monied interests to buy votes.
 
In the 2nd Amendment, "militia" is in the singular because "free State" is in the singular.

It's not my fault you failed 9th Grade English.

And it's not my fault that you have a short attention span. The word "militia" appears 6 times within the Constitution - 3 times in Article I §8; once in Article II §2; in the 2nd Amendment; and in the 5th Amendment. In all six instances the use of the word is singular - in five of the instances, it is proceeded by the word "the".



Why don't you read them and find out?

You can read all you want... there's no recorded instance of either of them speaking out on the subject. As, indeed, there is not for the majority of members of the convention on any given subject. And yet they all had the same vote as Madison or Hamilton. In the final analysis, all we truly have is the actual text they chose to ratify. Everything else is just supporting material.

Perhaps.

I mentioned it because the Massachusetts Supreme Court stated that a corporation was a person and thus subject to the church tax.

That's right....I don't believe corporations are people or have the same rights as people.

So does your point of view also hold true for the Court's decision in Citizens United v. FEC, 558 US 310 (2010)?
 
You know, it would help immensely if you took some college level courses on government and political science.

Since you'll probably never muster up the courage to do that, I'll explain it to you and the perhaps you'll understand the meaning of the word "elegant."

It takes "courage" to go to college ?

Let's take the Presidency.

The Framers could have enumerated every right that the President as head-of-State has.

That section of the Constitution alone would be about 19,473 pages.

What is your source for that ?

It's just you being foolish citing crass exaggerations

A more elegant way is simply to assume that a President has all the rights a head-of-State has had since time immemorial and then enumerate only those powers that were barred or limited.

So king Henry VIII of England had the right to have several wives executed for treason rather than have a messy divorce

The Constitutions sets a precedent by declaring that Congress has only the powers specifically given to it
You're now suggesting that the default position would be to assume the president does have the power

That is something of a polar shift - you know, it would help immensely if you took some college level courses on government and political science.



Since time immemorial, heads-of-State have had the power to declare war...

Err no. Not since the advent of a legislature and "constitutional" heads of state. Not in a democracy anyway


Since time immemorial, heads-of-State have had the right to choose their Cabinets. The Framers limited that power by having the States vis-a-vis the Senate approve the appointments.

OK, name a democratic country where the head of state appoints the cabinet (heads of government departments that is)

Heads-of-State also had the exclusive right to enter into treaties, and the President still does, but that power is checked by the States requiring Senate approval.

Heads-of-State also had the power to levy taxes, but the Framers gave that power to the People via the House.

Nope, not in countries that adopted democracy and formed a legislature.

See how that works? And it works for everything.

Nope
You know, it would help immensely if you took some college level courses on government and political science.


Congress has all the traditional powers the Roman Senate and the Greek democracies had....

Really, what do you know about the extent of the power of the Roman Senate? Did this power change between the late Republic and Imperial Rome ?
Who do you know of "the Greek democracies" ? Apart from Athens, can you name a single one or details how their "power" system functioned ?

You know, it would help immensely if you took some college level courses on government and political science.


Your system is perfectly capable of handling multiple parties. If you had 12 political parties, the Speaker would be chosen by a coalition of parties, just like in a parliamentary system.

And what is the problem with that ?

Lots of political parties give rise to political chaos and inertia - look at Italy
The solution is to adopt the German 5% approach. That is no party is represented in the national legislature unless it gets more than 5% of the vote

Your system is screwed up because you allow the sovereignty of States to be egregiously violated and monied interests to buy votes.

My system ?
 
Something like abortion can't be left to the states, it's too important an issue to allow haphazard law

Secession is not condoned/approved/opposed - the Constitution is totally silent with regard to it.
On what basis would they ban abortion? We already know the right wing doesn't really care about natural rights except in abortion threads (where they want to tell women what to do).

And, seceding by levying war upon the Union is treason.
 
On what basis would they ban abortion? We already know the right wing doesn't really care about natural rights except in abortion threads (where they want to tell women what to do).

And, seceding by levying war upon the Union is treason.

Well the threat of Wade V Roe being referred back to the Supreme Court has since receded with the election.

That ruling is hated by many on the right and they will twist the text of the Constitution, to say that it is outlawed and the original ruling was wrong.
 
Well the threat of Wade V Roe being referred back to the Supreme Court has since receded with the election.

That ruling is hated by many on the right and they will twist the text of the Constitution, to say that it is outlawed and the original ruling was wrong.
On what basis? Besides, an ounce of prevention is worth a pound of cure. The right wing will have to stop complaining about contraceptives.
 
This is not a common argument made against originalism. You're just making up a straw man.

The argument against originalism is that the founders clearly gave the country the ability to Amend the constitution because they were smart enough to realize that they could not predict the future.
You can understand what the founders intended, but not how they would have reworded things if they had the benefit of modern knowledge.
Not common? It's been made several times in this very thread.

Post #3 (made clear in his later posts), and #5, and that's just on the first page.
 
Not common? It's been made several times in this very thread.

Post #3 (made clear in his later posts), and #5, and that's just on the first page.
One of the unfortunate problems with Straw Men is that all too often when they are made an opponent will take the bait and argue that position. It is not however the primary and certainly not the best argument against originalism. If you want to waist your time arguing for garbage originalism you had better be prepared to take on the best arguments, not the 5th or 6th.
 
One of the unfortunate problems with Straw Men is that all too often when they are made an opponent will take the bait and argue that position. It is not however the primary and certainly not the best argument against originalism. If you want to waist your time arguing for garbage originalism you had better be prepared to take on the best arguments, not the 5th or 6th.
I never said it was a good argument against originalism (it's a lousy one, actually). But it is not a straw-man. As poor an argument as it may be, in my experience it's one activists frequently make.
 
The reality is that there is a deep historical record around the writing of the Constitution and all its amendments. A good faith effort to understand what the framers (and subsequent amendment ratifiers) meant by their words is not only possible, it's necessary if you value a democratic process.
But if you would really like to waste your time on that crock of nonsense then the pure and simple fact that there are numerous historians, judges, and legal scholars who know the constitution and history like the back of their hands and yet still radically disagree on meanings and intentions proves you to be 100% wrong on this point too.
Your own personal biases clearly influence how you choose to read the constitution. The 2nd Amendment as a classic example is very clear to me that it is intended to apply to a well-regulated militia which was essential at the time and completely unnecessary today. It is also very clear to me that the founder had never dreamed of Nuclear-Arms when they said the "right to bear arms".
As a result, the size and destructive power of "arms" the founders intended individuals to own are entirely up to anyone's guess and cannot be proven definitively.
 
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