A Thought Exercise on Originalism vs a More Activist Approach

[HikerGuy83]

And what are states supposed to do that they aren't and if they aren't is that the fault of the federal government? Kentucky is one of the poorest states in america, is that the fault of the federal government?

And if we are going back does that mean dirt roads, no electricity and no indoor plumbing too? Can we stop going backwards when we are all living in caves again?

And what are states supposed to do that they aren't and if they aren't is that the fault of the federal government? Kentucky is one of the poorest states in america, is that the fault of the federal government?

And if we are going back does that mean dirt roads, no electricity and no indoor plumbing too? Can we stop going backwards when we are all living in caves again?

Let's take your first statement:

States are not the ultimate authority on things like abortion or gay marriage. That was taken from them even though there is no authority under the constitution, or even the 14th amendment, to do so.

States are also subjected to a federal EPA. Regardless of how you feel about environmental protection, the power to protect the environment is not spelled out in the constitution.

So, there are a couple of examples.

Moving on.

I fail to see what Kentucky has to do with anything. You are talking about economic conditions. The U.S. Constitution does not grant the federal government any power to regulate or modify economic conditions beyond needing to tax to take care of enumerated powers.

I don't recall saying that the federal government was the reason Kentucky was poor.

And "going back" has no reference to economic conditions. Period.

It means going back to the days when states did things like determining whether or not prayers could be said in schools.

 

[Jason Warfield]

There are two schools of thought about the Constitution; originalists and people who want to do something unconstitutional.

Originalist thought often comes into conflict with three things concerning the Constitution.

First, they understood that the nation would change over time and so developed a way to change the document to fit the needs of the future…within the document itself. They understood that at some point the times would challenge intent and those challenges would come in the form of laws and how they would be debated and ruled over in the lower courts. Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted. The Framers created a process for the future because they understood that their intent may not be good enough for the nation for the future for point number two…

Not all the Framers had the same intent on the Constitution. They had varied and different thoughts and opinions. It continued after the Constitution was passed on what elements of it actually meant. Which leads to the last point…

To be an originist means that the Bill of Rights was not part of the original intent of the Constitution so you should be disregarding it. It means you shouldn’t have a position on something like…oh, I don’t know…the First or Second Amendments. There was never any consensus on the Bill of Rights that resulted in a unanimous intent of it.

These points lead to the fact that there was no one single original intent on any of it…so how can one claim original intent?

Answer; you can’t.

 

[HikerGuy83]

Originalist thought often comes into conflict with three things concerning the Constitution.

First, they understood that the nation would change over time and so developed a way to change the document to fit the needs of the future…within the document itself. They understood that at some point the times would challenge intent and those challenges would come in the form of laws and how they would be debated and ruled over in the lower courts. Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted. The Framers created a process for the future because they understood that their intent may not be good enough for the nation for the future for point number two…

Not all the Framers had the same intent on the Constitution. They had varied and different thoughts and opinions. It continued after the Constitution was passed on what elements of it actually meant. Which leads to the last point…

To be an originist means that the Bill of Rights was not part of the original intent of the Constitution so you should be disregarding it. It means you shouldn’t have a position on something like…oh, I don’t know…the First or Second Amendments. There was never any consensus on the Bill of Rights that resulted in a unanimous intent of it.

These points lead to the fact that there was no one single original intent on any of it…so how can one claim original intent?

Answer; you can’t.

At the same time, you can't make it up as you go (or you shouldn't.....and we certainly seem to).

Whether or not you are an originalist, there has to be some agreement that the Constitution created a limited Federal Government.

Limited in the sense that there were things it could do (and it wasn't limited in that regard) and things it could not do (and in that sense it was totally limited).

If you don't believe that, then we really don't have any chance of agreeing on much of anything.

A discussion about their writings could contribute if you think that is important.

 

[bongsaway]

Let's take your first statement:

States are not the ultimate authority on things like abortion or gay marriage. That was taken from them even though there is no authority under the constitution, or even the 14th amendment, to do so.

States are also subjected to a federal EPA. Regardless of how you feel about environmental protection, the power to protect the environment is not spelled out in the constitution.

So, there are a couple of examples.

Moving on.

I fail to see what Kentucky has to do with anything. You are talking about economic conditions. The U.S. Constitution does not grant the federal government any power to regulate or modify economic conditions beyond needing to tax to take care of enumerated powers.

I don't recall saying that the federal government was the reason Kentucky was poor.

And "going back" has no reference to economic conditions. Period.

It means going back to the days when states did things like determining whether or not prayers could be said in schools.

The constitution, yeah we hear that argument from the right as they shit all over it. I for one think our old paper needs some serious updating. Why are we continuing to live under ideas that were written hundreds of years ago? Are we still living in the seventeen eighty six? There are a bucket full of laws that have nothing to do with the constitution, should we just ignore them?

You're kidding about prayers? This is an example of important things for a state to decide? I say no to prayers in school. I do not believe in a christian god, or a muslim profit or any other god/s. By prayer I presume you mean christian prayer praising jesus? Keep your prayers to yourselves or pray all you want, in church. Leave your religion at the door, it has nothing to do with reading, writing and rithmatic.

 

[HikerGuy83]

The constitution, yeah we hear that argument from the right as they shit all over it. I for one think our old paper needs some serious updating. Why are we continuing to live under ideas that were written hundreds of years ago? Are we still living in the seventeen eighty six? There are a bucket full of laws that have nothing to do with the constitution, should we just ignore them?

What argument do you hear ?

You can update it, you know. There is a clearly established process for doing so.

And yes, for some reason we still live under those ideas.....because nobody has come up with anything better. Feel free to try.

Bucket full.....I have no idea what you are talking about.

You're kidding about prayers? This is an example of important things for a state to decide? I say no to prayers in school. I do not believe in a christian god, or a muslim profit or any other god/s. By prayer I presume you mean christian prayer praising jesus? Keep your prayers to yourselves or pray all you want, in church. Leave your religion at the door, it has nothing to do with reading, writing and rithmatic.

Not kidding at all. And it does not need to be a specific religion. Regardless of how YOU feel about it, the 1st amendment is very clear about the federal government staying out of religion. When the country was first formed, there were several states that had (and kept) state sponsored religions. And that was never challenged.

You seem to miss the point though. It's up to the state to regulate that stuff. And if a state wants to allow prayer in school, the federal government has no business getting involved....per the constitution.

The fact that they still get involved is simply a travesty and a violation of their oaths.

 

[bongsaway]

What argument do you hear ?

You can update it, you know. There is a clearly established process for doing so.

And yes, for some reason we still live under those ideas.....because nobody has come up with anything better. Feel free to try.

Bucket full.....I have no idea what you are talking about.



Not kidding at all. And it does not need to be a specific religion. Regardless of how YOU feel about it, the 1st amendment is very clear about the federal government staying out of religion. When the country was first formed, there were several states that had (and kept) state sponsored religions. And that was never challenged.

You seem to miss the point though. It's up to the state to regulate that stuff. And if a state wants to allow prayer in school, the federal government has no business getting involved....per the constitution.

The fact that they still get involved is simply a travesty and a violation of their oaths.

You tell me what other religion beside christianity and judaism is accepted in america? How do you think states would act if muslims had to pray three times during the school day?

 

[HikerGuy83]

You tell me what other religion beside christianity and judaism is accepted in america? How do you think states would act if muslims had to pray three times during the school day?

There are some very dominant muslim areas in cities such as Detroit.

If they wanted to pray 3 times a day, that is up to them and the local authorities.

Do you dispute that the 1st Amendment says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

 

[natman]

Originalist thought often comes into conflict with three things concerning the Constitution.

First, they understood that the nation would change over time and so developed a way to change the document to fit the needs of the future…within the document itself. They understood that at some point the times would challenge intent and those challenges would come in the form of laws and how they would be debated and ruled over in the lower courts. Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted. The Framers created a process for the future because they understood that their intent may not be good enough for the nation for the future for point number two…

Yes, they realized that things would change. That's why there is an amendment process built in.
Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted.
I'm not sur what rBen is, I'm going to guess "then". That's not how it works. The Supreme Court's job is to interpret the law. It is NOT to change the Constitution, "if that's the law the people wanted". That's what amendments are for.

To be an originist means that the Bill of Rights was not part of the original intent of the Constitution so you should be disregarding it. It means you shouldn’t have a position on something like…oh, I don’t know…the First or Second Amendments. There was never any consensus on the Bill of Rights that resulted in a unanimous intent of it.

These points lead to the fact that there was no one single original intent on any of it…so how can one claim original intent?

Answer; you can’t.

There is a process for adding amendments in the original constitution. Once amendments are added, they become part of the constitution. The notion that you can't interpret amendments is flat out wrong and the whole argument is nonsense.

 

[HikerGuy83]

Yes, they realized that things would change. That's why there is an amendment process built in.
Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted.
I'm not sur what rBen is, I'm going to guess "then". That's not how it works. The Supreme Court's job is to interpret the law. It is NOT to change the Constitution, "if that's the law the people wanted". That's what amendments are for.



There is a process for adding amendments in the original constitution. Once amendments are added, they become part of the constitution. The notion that you can't interpret amendments is flat out wrong and the whole argument is nonsense.

The debate in the Supreme Court that is referenced is after the amendment is put in place....correct ?

Otherwise, I might be learning something new.

 

[smallvoice]

And what are states supposed to do that they aren't and if they aren't is that the fault of the federal government? Kentucky is one of the poorest states in america, is that the fault of the federal government?

And if we are going back does that mean dirt roads, no electricity and no indoor plumbing too? Can we stop going backwards when we are all living in caves again?

The only way we'll go "back to living in caves again" is if we let the liberals/progressives run the place

 

[HikerGuy83]

The only way we'll go "back to living in caves again" is if we let the liberals/progressives run the place

 

[prometeus]

States are not the ultimate authority on things like abortion or gay marriage.

So you are saying that gay couples should be considered married in some states but not in others?
How about if you were not allowed to drive across state lines because your driver licence was not valid in the next state?
It is ignorant to no consider the implications of what you are saying or to want them because some people lack the ability to understand modern society.

States are also subjected to a federal EPA. Regardless of how you feel about environmental protection, the power to protect the environment is not spelled out in the constitution.

More of the same myopic view.

It means going back to the days when states did things like determining whether or not prayers could be said in schools.

Why should they?

 

[prometeus]

Whether or not you are an originalist, there has to be some agreement that the Constitution created a limited Federal Government.

It did but it certainly did not intend on hamstringing it because some people can not handle change.

A discussion about their writings could contribute if you think that is important.

Like, say, about their position on slavery? Why is it that some things they did can be acknowledged as in error yet others, the ones you still like, can not be even considered as lacking?

 

[HikerGuy83]

So you are saying that gay couples should be considered married in some states but not in others?
How about if you were not allowed to drive across state lines because your driver licence was not valid in the next state?
It is ignorant to no consider the implications of what you are saying or to want them because some people lack the ability to understand modern society.

That is up to the states. Whether or not you like it does not matter unless you live in that particular state.

Spare me the moral lectures too.

This is about how the Constitution was set up.

As for drivers licenses, please show me the enumerated power that gives the feds the authority to regulate drivers licenses.

You are the ignorant one here. We are discussing an approach to the constitution. Not your view of what should and should not be. Like any arrogant left winger, you seem to think you have a place in the clouds from which you can look down on the rest of us.

News Flash: You don't.

More of the same myopic view.

Your argument fails again.

 

[prometeus]

You seem to miss the point though. It's up to the state to regulate that stuff. And if a state wants to allow prayer in school, the federal government has no business getting involved....per the constitution.

Of course it does. It has the duty to protect the rights of those who do not believe. Why the hell does one need to pray in school anyway? To demonstrate false piety to others?

 

[HikerGuy83]

It did but it certainly did not intend on hamstringing it because some people can not handle change.

Like, say, about their position on slavery? Why is it that some things they did can be acknowledged as in error yet others, the ones you still like, can not be even considered as lacking?

Hello: The federal government is only one form of government.

You have state government.

You have county government.

You have municiple government.

You even have HOA's.

Seems that left wingers forget that.

 

[HikerGuy83]

Of course it does. It has the duty to protect the rights of those who do not believe. Why the hell does one need to pray in school anyway? To demonstrate false piety to others?

Intent really does not matter in a discussion on what is allowable and what is not. I hope you get that. So your question is moot.

What part of the first amendment don't you get ?

If the people of a school district elect a school board that then decides the kids should pray to Burger King....and the parents are O.K. with it....you only have issue if you live there....and you can argue with the parents who elected the school board members.

 

[prometeus]

That is up to the states. Whether or not you like it does not matter unless you live in that particular state.

No it is not up to the states to deny rights because they are bigoted and it has nothing to do with my liking or not.

Spare me the moral lectures too.

What moral letures?

This is about how the Constitution was set up.

And which you are perverting.

You are the ignorant one here.

Because I refuse to wear the same blinders as you do?

We are discussing an approach to the constitution.

Yes.

Not your view of what should and should not be.

But your view instead because you like it better eh?

Like any arrogant left winger,

More of your moronic ignorance. If intelligent reasoning escapes you and it clearly does, label.

you seem to think you have a place in the clouds from which you can look down on the rest of us.

If I look down it is on the willful ignorants who can not handle modern society.

 

[prometeus]

Hello: The federal government is only one form of government.

You have state government.

You have county government.

You have municiple government.

You even have HOA's.

Seems that left wingers forget that.

WTF?

 

[HikerGuy83]

WTF?

Like I said.

 

[natman]

Yes, they realized that things would change. That's why there is an amendment process built in.
Which would then be debated in the Supreme Court…and rBen possibly changed in the Constitution if that is the law the people wanted.
I'm not sure what rBen is, I'm going to guess "then". That's not how it works. The Supreme Court's job is to interpret the law. It is NOT to change the Constitution, "if that's the law the people wanted". That's what amendments are for.

The debate in the Supreme Court that is referenced is after the amendment is put in place....correct ?

Otherwise, I might be learning something new.

The part in italics is quoted from @Jason Warfield . It looks like he thinks things get debated in the Supreme Court, then somehow the Constitution gets changed "if that's the law the people wanted". Which is wrong on every count; SCOTUS interprets existing law as it relates to the Constitution. They don't change the Constitution. And what the people want is the last thing that should be part of their deliberations. That's why Supreme Court nominations are proposed by the President (elected by the Electoral College) and the Senate (elected on a state by state basis), rather than the House (elected by the people directly).

But the whole thing is so poorly written it's hard to know for sure.

 

[TurtleDude]

Both are reasonable conditions to place on the exercising of those right (so is requiring an ID, BTW).

the only way my vote can be protected-or your vote protected-is making sure only those who are proper voters vote and registration accomplishes that. Registration does nothing to advance the right to keep and bear arms

 

[AConcernedCitizen]

A common argument I have heard made against originalism is that it's impossible to understand what those who wrote and ratified a law (and especially the framers) meant. So, a thought exercise. Let us suppose there was only one copy of the US Constitution, and it's an original from 1789. Let us suppose also there was one sentence on that hemp paper that looked like this:


View attachment 67299892


Question: can (or should) that ink-stained passage be used to overturn an act of Congress?

Second question: why does the first question matter? Answer: it's absolutely no different than using a passage you can read but claim cannot be understood to do the same thing. If a judge cannot assert what a legal text originally meant, his or her court has no business applying that text to decide a case. To do so would be, in effect, writing new law, and in a democracy that is a job for elected officials, not appointed judges.

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.

It is fascinating when folks don't think you should apply modern moral standards in evaluating people from hundreds of years ago, but are adamant that the intents of a bunch of slaveholders be imposed on people today without being filtered through any kind of modern lens.

 

[NatMorton]

It is fascinating when folks don't think you should apply modern moral standards in evaluating people from hundreds of years ago, but are adamant that the intents of a bunch of slaveholders be imposed on people today without being filtered through any kind of modern lens.

Fascinating you think we should be subject to someone's idea of what a "modern lens" is rather than by a democratic process of law making.

 

[American]

I subscribe to the textualist viewpoint - instead of trying to devine what the authors intended, I think it's far more important to adhere to the words they actually wrote.

In answer to your questions... 1) Yes, I firmly believe in the concept of Judicial Supremacy... the Courts fulfill a vital role in protecting the rights of the minority from the tyranny of the majority. If a law is deemed unconstitutional, then it should definitely be struck down.

2) The first question matters because it cuts to the core of who we are as a country... are we a nation ruled by law or are we a nation ruled by man? If and to the extent we pass laws that are at odds with the constitution, and we build our laws without reference to the constitutional cornerstone, then we will find the foundations of our society slowly sinking into the mire of tyranny.

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449

"The government will certainly decide for itself on whose counsel they will settle the construction of the laws they are to execute. We are to look at the intention of the Legislature, and to carry it into execution while the lawyers are nibbling at the words of the law." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:168

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:59

"The construction applied... to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to [the General Government's] power by the Constitution... Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:385

These quotes summarize how most of the Founders viewed the Constitution.