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A Thought Exercise on Originalism vs a More Activist Approach

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.
Maybe you should worry more about how you spend your own time and less about how I spend mine.

I accept the assertion there isn't uniform agreement on what the original intent of many Constitutional passages mean. That's okay. As I've said elsewhere in this thread, there is all the difference in the world between making an honest attempt at identifying intent and willfully ignoring it in order to legislate from the bench. IMO, you're letting perfect be the enemy of good.
 
As I've said elsewhere in this thread, there is all the difference in the world between making an honest attempt at identifying intent and willfully ignoring it in order to legislate from the bench.
This is what virtually all judges do. This is not originalism. However, it is very clear that context is every bit as important if not more important than the literal text.
As I pointed out early the right to bear arms could be construed to include any and all arms, which would include Nuclear-Arms. Clearly, the idea of the funders supporting the right of individuals to purchase intercontinental ballistic missiles would be ludicrous.

Originalism is a blatant disregard for context and an unwillingness to even consider that not everything was clearly thought out by the founders. The Declaration of Independence for example clearly states that this country was founded on the proposition that All Men Are Created Equal.
Yet clearly at the time, the founders did not consider black people or Native Americans to be human beings that counted in that statement. It is clear that in cases such as these the founders had intentions that they themselves did not fully live up to. Clearly meshing those intentions and sentiments with
modern realities are something the court must occasionally do. This is what makes originalism an abysmal crock of stupidity. The founders frequently contradicted themselves no matter how hard they tried and a good constitutional scholar is capable of applying modern realities with the spirit of the founder's initial principles.
That is not activism or legislating from the bench it is common sense.
 
Originalism is a blatant disregard for context and an unwillingness to even consider that not everything was clearly thought out by the founders.
Opinion, not fact.

Yet clearly at the time, the founders did not consider black people or Native Americans to be human beings that counted in that statement. It is clear that in cases such as these the founders had intentions that they themselves did not fully live up to.
Talk about straw-men. Do you really think originalism is limited to the intent of the original version of the Constitution?
 
Opinion, not fact.
Fact.

Talk about straw-men. Do you really think originalism is limited to the intent of the original version of the Constitution?
No, Originalism is a blatant political ploy. It's not a philosophy of any kind it's a slogan designed to make it seem like only conservatives care about the constitution and liberals don't.

Originalism in reality is nothing more than Conservativism dressed up in a black gown. It's a bias in favor of old ways of thinking in order to give people scared of the future and excuse to continue violating basic human rights.

It's the same bullshit you see when so-called fiscal conservatives only seem to care about the deficit when a Democrat is in the white house. Judicial Activism is a line that's fed to idiots when Liberal Judges hand down rules they don't like, and an excuse to destroy human rights under the guise of being true to the constitution and the founder's intentions.

It's not a philosophy it's a lie, plain and simple.
 
Fact.


No, Originalism is a blatant political ploy. It's not a philosophy of any kind it's a slogan designed to make it seem like only conservatives care about the constitution and liberals don't.

Originalism in reality is nothing more than Conservativism dressed up in a black gown. It's a bias in favor of old ways of thinking in order to give people scared of the future and excuse to continue violating basic human rights.

It's the same bullshit you see when so-called fiscal conservatives only seem to care about the deficit when a Democrat is in the white house. Judicial Activism is a line that's fed to idiots when Liberal Judges hand down rules they don't like, and an excuse to destroy human rights under the guise of being true to the constitution and the founder's intentions.

It's not a philosophy it's a lie, plain and simple.
What I've learned from this exchange:
  • You don't really know what originalism is.
  • You don't know what arguments are being made against originalism.
  • You don't appreciate the consequences of departing from original intent.
  • Your political bias is likely what's blinding you.
  • You cannot separate fact from your own opinion.
Have a nice evening.
 
What I've learned from this exchange:
  • You don't really know what originalism is.
  • You don't know what arguments are being made against originalism.
  • You don't appreciate the consequences of departing from original intent.
  • Your political bias is likely what's blinding you.
  • You cannot separate fact from your own opinion.
Have a nice evening.
Case in point. You just project all the things you yourself are guilty of on me and announce yourself as devoid of bias when it's very clearly not the case.
 
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.

Weak argument or not, you still haven't found an argument to counter it. :)

How about if tomorrow someone finds a letter in their attic that Elbridge Gerry wrote to his niece that expresses heretofore unknown constitutional views that weren't previously ascribed to him? Are we supposed to over over two centuries of legal precedent because of that?
 
???

The president must be a natural born citizen.

What do you think that means....not born via caesarian section ?
It is a fixed Standard in writing in our federal Constitution. What do you believe separation of the morals of church and State mean?
 
It is a fixed Standard in writing in our federal Constitution. What do you believe separation of the morals of church and State mean?

Where else does the phrase "natural born" appear in the Constitution ?
 
Weak argument or not, you still haven't found an argument to counter it. :)

How about if tomorrow someone finds a letter in their attic that Elbridge Gerry wrote to his niece that expresses heretofore unknown constitutional views that weren't previously ascribed to him? Are we supposed to over over two centuries of legal precedent because of that?
No, we should not.
 
As I pointed out early the right to bear arms could be construed to include any and all arms, which would include Nuclear-Arms.

No, it cannot be construed in that way. Which part of "bear" do you not understand?

It's clearly discussing personal weapons and not crew-served weapons or weapons platforms.

Only people who have no understanding whatsoever of nuclear weapons would even suggest people could have nuclear weapons.

In the first place, there's no such thing as "nuclear weapons." That is a clear indicator you're Media spoon-fed propaganda. It's "nuclear weapons systems" with the operand being "system" meaning there are multiple components and a nuclear warhead is merely one component of the system.

Notwithstanding the fact that you couldn't afford to buy a nuclear warhead or any of the components that go with it, they are very fragile.

I had to fly down and pick up a Pershing II warhead that was damaged by lightning in spite of the fact that the warhead was sitting an an atomic blast-resistant earth-covered structure -- 3 feet of reinforced concrete walls, ceiling and floor covered with 3 feet or more of earth -- and the lightning strike was 400 meters away.

The static discharge still fried the electrical package.

Which brings me to another point is you couldn't afford the talk-box and wouldn't know how to use it. Yeah, we talk to the bombs. Wake up, go to sleep, get ready to rock-n-roll. The talk-box also tells you what's wrong with the warhead.

In addition to not being to afford and maintain an ABREST -- it's like a basement except the temperature is a constant 60-62°F with humidity less than 20% -- you couldn't afford the 60-man guard force that was properly trained, armed and equipped to protect it.

Yeah, just like useless turds break into people's homes to steal weapons, they'll be coming for your nuke.

The maintenance cycles are 12 to 18 months, or the weapon won't work. Oh, and good luck buying Deuterium or Tritium on the global market. Yeah, that's right, you'll need that as part of your maintenance if you have a thermonuke.

You think you're going to drop a B-61 gravity bomb from your Piper Cub? Nope, not gonna happen. You need to be at least 28,000 feet with a forward motion of greater than 300 knots or the weapon won't arm itself.

So you got an 5"/203mm nuke round. You ain't got the rocket that goes with it. You wouldn't know how to maintain the rocket and you'd look like the 3 Stooges trying to mate the rocket to the warhead.

Then you'd need an 8"/203mm howitzer, which you wouldn't know how to maintain.

And you can't use standard propellant charges. You have to have a special propellant charge and since the US government isn't going to sell it to you, you'll have to find one on the global market.

For missile systems, you couldn't afford to buy or maintain them, and you wouldn't know how they work.

So, why don't we stop with the nuclear nonsense fantasy because it's the only thing losers have.
 
The Declaration of Independence for example clearly states that this country was founded on the proposition that All Men Are Created Equal.

All White Men are created equal.

White Europe and White Middle East considered Africans and Indigenous peoples to be barbarians in the exact same way that Romans and Greeks considered "Scythians" to be uncouth barbarians.

And, in the exact same way the Imperial Roman Catholic Church thought Slavs were barbarians and thus had no qualms about using Slavs as slaves on papal estates throughout Western, Central and Eastern Europe, hence the word "slave" from Slav.

My ancestors were slaves on a papal estate for more than 600 years, so I'm not exactly sure what other people are whining about.

Sometimes barbarians become civilized and when they are, they are generally considered to be equals by those who formerly viewed them as barbarians.

The fact that the Constitution did not recognize some people as full citizens does not mean the document is flawed.

Had you lived at the same time as they, you would have thought exactly as they did, because you would have been a product of the times.

Likewise, had those men been alive today, they would not think as though they lived in the late 1700s.

Those men understood that things change and they created the possibility of change by allowing the Constitution to be amended. At the same time, they did make amending difficult as a hedge against whimsical fantasies.
 
Congress writes the amendments for the states to ratify. Neither the courts, the executive or the states can initiate a change to the constitution. Let me know if you need anymore help.

Um, you need lots of help.

Two-thirds of the States (34 States at present) may call for a convention and write an amendment.
 
All White Men are created equal.

The fact that the Constitution did not recognize some people as full citizens does not mean the document is flawed.
Did you know that our original Constitution and Bill of Rights are both gender and race neutral from Intelligent Design and Inception? Only sufficient morals were lacking.
 
Did you know that our original Constitution and Bill of Rights are both gender and race neutral from Intelligent Design and Inception? Only sufficient morals were lacking.

Intelligent Design ?

Are you suggesting the input of some supernatural being ?
 
While it may speak to the intent of one individual; it does not speak to the consensus understanding of the many who ratified the law.
.
There is nothing ambiguous or vague regarding the most excellent job our Founding Fathers dis at the convention with our supreme law of the land.
 
There is nothing ambiguous or vague regarding the most excellent job our Founding Fathers dis at the convention with our supreme law of the land.
Can't agree with you there. There is room for honest difference when it comes to an assessment of what was intended. If you're looking for vague wording, you need look no further than the 2A.
 
Can't agree with you there. There is room for honest difference when it comes to an assessment of what was intended. If you're looking for vague wording, you need look no further than the 2A.
Don't take this the wrong way, but the only thing vague about our Second Article of Amendment is the ignorance that Must be appealed to. It is perfectly clear, to me.
 
Don't take this the wrong way, but the only thing vague about our Second Article of Amendment is the ignorance that Must be appealed to. It is perfectly clear, to me.
I don't think it's unreasonable to wonder whether the "well regulated militia" qualifier opens up the "right to bear arms" clause for discussion. I happen to believe the 2A is an unqualified statement securing the right to own a gun, but I can see why others question it.
 
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