Judicial activism.

[Wessexman]

Then repost your disagreements that directly relate to my post in this thread. I'm not going to do a rehashing.

You neglected to answer my arguments in the last post. I simply did not want to go to the bother of rewriting what you have previously neglected.

And re-reading your post, I did address it with Madison's argument and the concept of judicial review. However, repost in a response to my post, here, if you feel it was not adequate. I think it was.

This:

There are two large errors in this argument. Firstly it ignores the degree to which most of these situations can be covered by applying precedent, tradition and original meaning and perhaps appealing to the legislature for future guidance and secondly it tends to inflate the number of cases where this largely new ground is needed and pull a lot of other issues into it when it is not necessary making the whole constitution basically mere guidelines. In other words you do draw attention to something perhaps neglected by both sides until now, the complexity and difficulties of some of these situations(some are quite new and not completely covered by past law.), but you go far too far when you take this to mean that judges should very often be able to completely reinterpret laws and constitutions when something is the least bit controversial, which is what is being implied by your extremely loose constructionist argument, you've taken the exceptions, which can usually be muddled through anyway by relying on precedent and only making very small leaps and then appealing to the legislature for help in the future, and made them the rule with which you attempt to demolish constitutions and turn them into mere guidelines.

Ultimately you would do just that, you would allow the judiciary such power to reinterpret laws, "because the circumstances have changed" that the constitution would be mere guidelines. The rule of law could not function in such an environment when they had such arbitrary power and people were liable to face only the law the particular judges wanted to allow and it would be extreme pressure on the sepration of powers particularly if the judiciary could be coopted by the executive.

Pretty much sums up my reply to your arguments aboout "times have changed".

Everything I've read about him shows him as complex but consistent. I was not a fan in my early days, but the more I've read about him, the more impressed I've become. Nowadays I see him as one of the most important creators of the US.

He is interesting but I'd call him more an absolutist without a King than anything else.

It is in no way arbitrary. It applies legal precedence, with an interpretation that fits the times. It is the judiciary's responsibility to protect the Constitution. Remember, since the Constitution protects the people, this progression shows that it is the judiciary's job to protect the people. Thus through the "Necessary and Proper Clause" the 9th Amendment, and judicial review, the judiciary has the latitude to do so based on the needs of the people in the context of the time. The FFs knew this, as I have shown.

So it is only a small move away from precdent then? That limits the damage as long as restraint is kept but it could easily lead to a philosophy where restraint is less easy to kepp and it still leaves an area of arbitrary-ness. Why is this necessary? I mean it may mean the judges can't, or at least hopefully won't, reinterpet completely willy nilly, but it gives them a lot of lee-way and an avenue for progressive errosion particularly when added to an aggressive executive. Perhaps one can't hope for a gov't completely free of unaccountable and arbitrary power but I still don't see how this abuse is necessary? You seem to be trying ti justify it with rather wooly arguments about ends.

 

[CaptainCourtesy]

You edited.

Firstly, Hamilton demolished "Brutus' in debate in the Federalist Papers: Hamilton's positions were upheld. And Jefferson used the implied powers for the Louisiana Purchase, so he went along with these powers when it suited him.

And of course political freedom and order requires not only that one have an area of rights and spheres which the gov't cannot interfere with and that are protected. The Constitution covers many rights and spheres that are protected. However, since each and every scenario could not be accounted for, the FFs were wise enough to place powers that would govern these situations and allow the judiciary to place them, contextually in the limits of the Constitution. This requires interpretation. As the FFs acknowledged.

 

[Wessexman]

You edited.

Firstly, Hamilton demolished "Brutus' in debate in the Federalist Papers: Hamilton's positions were upheld. And Jefferson used the implied powers for the Louisiana Purchase, so he went along with these powers when it suited him.

I really don't think he demolished Brutus' positions, that is a very one-dimensional way of putting it. I don't think the fact his positions were upheld is direct proof they were better. I also don't see hopw Jefferson's behavour relates to his arguments.

And of course political freedom and order requires not only that one have an area of rights and spheres which the gov't cannot interfere with and that are protected. The Constitution covers many rights and spheres that are protected. However, since each and every scenario could not be accounted for, the FFs were wise enough to place powers that would govern these situations and allow the judiciary to place them, contextually in the limits of the Constitution. This requires interpretation. As the FFs acknowledged.

You are trying to make the FF's a monolithic entity they were not.

 

[CaptainCourtesy]

You neglected to answer my arguments in the last post. I simply did not want to go to the bother of rewriting what you have previously neglected.

This:

There are two large errors in this argument. Firstly it ignores the degree to which most of these situations can be covered by applying precedent, tradition and original meaning and perhaps appealing to the legislature for future guidance and secondly it tends to inflate the number of cases where this largely new ground is needed and pull a lot of other issues into it when it is not necessary making the whole constitution basically mere guidelines. In other words you do draw attention to something perhaps neglected by both sides until now, the complexity and difficulties of some of these situations(some are quite new and not completely covered by past law.), but you go far too far when you take this to mean that judges should very often be able to completely reinterpret laws and constitutions when something is the least bit controversial, which is what is being implied by your extremely loose constructionist argument, you've taken the exceptions, which can usually be muddled through anyway by relying on precedent and only making very small leaps and then appealing to the legislature for help in the future, and made them the rule with which you attempt to demolish constitutions and turn them into mere guidelines.

Ultimately you would do just that, you would allow the judiciary such power to reinterpret laws, "because the circumstances have changed" that the constitution would be mere guidelines. The rule of law could not function in such an environment when they had such arbitrary power and people were liable to face only the law the particular judges wanted to allow and it would be extreme pressure on the sepration of powers particularly if the judiciary could be coopted by the executive.

Pretty much sums up my reply to your arguments aboout "times have changed".

Actually, this does not address my argument. It creates a straw man. I am not talking about reinterpreting laws in an arbitrary way. I am also not talking about the Constitution being guidelines. I am talking about using the Constitution as the FFs intended. Situations not covered, expressly, can be implied and interpreted. You are speaking in absolutist terms. Sorry. Address what I said.

He is interesting but I'd call him more an absolutist without a King than anything else.

Some considered him a monarchist. He wasn't. He was a centralist, precisely what the US at the time needed to be stable.

So it is only a small move away from precdent then? That limits the damage as long as restraint is kept but it could easily lead to a philosophy where restraint is less easy to kepp and it still leaves an area of arbitrary-ness. Why is this necessary? I mean it may mean the judges can't, or at least hopefully won't, reinterpet completely willy nilly, but it gives them a lot of lee-way and an avenue for progressive errosion particularly when added to an aggressive executive. Perhaps one can't hope for a gov't completely free of unaccountable and arbitrary power but I still don't see how this abuse is necessary? You seem to be trying ti justify it with rather wooly arguments about ends.

You are catastrophizing and over reacting. The sky is not falling. I think I have explained the necessity of this, several times, now. The judiciary cannot reinterpret completely. This is again a straw man argument, one that I have not made. And your term "abuse" is also silly and over reacting. It is not abusive in any way. It was discussed, defended, and part of the Constitution. You may not like it, or agree with it, but that doesn't make it any less valid.

 

[CaptainCourtesy]

I really don't think he demolished Brutus' positions, that is a very one-dimensional way of putting it. I don't think the fact his positions were upheld is direct proof they were better. I also don't see hopw Jefferson's behavour relates to his arguments.

I do think that Hamilton defeated Brutus' arguments quite handily. Remember that we use the Federalist Papers as a way of understanding the Constitution. Not the opposing views.

You are trying to make the FF's a monolithic entity they were not.

I am aware that they are not. However, just as Jeffersonian tenets ruled the day during the first part of the 19th century, Hamilitonian tenets were more de rigor during the late 18th century, and post-Civil War...certainly in much of the 20th Century. Now, without Constitutional interpretation, this would not be possible. Amazing document.

 

[Wessexman]

Actually, this does not address my argument. It creates a straw man. I am not talking about reinterpreting laws in an arbitrary way. I am also not talking about the Constitution being guidelines. I am talking about using the Constitution as the FFs intended. Situations not covered, expressly, can be implied and interpreted. You are speaking in absolutist terms. Sorry. Address what I said.

You do not explain how I'm creating a strawman. You are suggesting judges be allowed to interpret the constitution to keep up with events even when it is not the original meaning and strict construction of the constitution. This by definition turns it into guidelines because judges can use it broadly to try and squeeze anything in by simply making it somewhat fit the wording despite this having little to do with precedent or original meaning and this by definition gives them arbitrary power because they can decide if two people in the exact same situation face very different outcomes.


Also you keep claiming it was what the FF's intended but you are only talking about Hamilton, Ames and the like. Jefferson, Patrick Henry and the anti-federalists for instance had very different ideas.

Some considered him a monarchist. He wasn't. He was a centralist, precisely what the US at the time needed to be stable.

A Tory without a king was the term used at the time. There is something of the more absolutist Tory or more precisely something of the Hobbesian about Hamilton.I'm not sure why you keep using him though, he is hardly the most profound theorist among the FF's, in fact beyond the Federalist papers I believe he wrote little in the way of political treatise.

You are catastrophizing and over reacting. The sky is not falling. I think I have explained the necessity of this, several times, now.

You have given the usual ends over means, we must move with the times speech.

The judiciary cannot reinterpret completely.

But they can have some lee-way which allows not only for a culture of reinterpretation to grow up but can allow a lot of small and medium sized breaches of the rule of law, giving them some arbitrary power. I don't see why this should be done. It would be far better to minimise this where we can.

 

[Wessexman]

I do think that Hamilton defeated Brutus' arguments quite handily. Remember that we use the Federalist Papers as a way of understanding the Constitution. Not the opposing views.

Firstly it is the anti-federalists that got bill of rights added giving them an important place in the history of the constitution but it was the federalists document so they are most used to understand it. The reason it was accepted does not necessarily have to do primarily with the federalists arguments. There are other factors, the make up of conventional delegates for a start who were many times more pro- a stronger central gov't even than most of the regular people were, going on the opposition of the states to the constitution sans bill of rights, the material interests of the ruling class(Beard makes some good although perhaps sometimes slightly flawed arguments about this.), the better use of propaganda/marketing techniques of the federalists(the anti-federalists never realised compact papers like the federalists.) and such. One cannot rule these out, particularly when you don't make detailed arguments to show how Hamilton "demolished" Brutus(it might have been Publius I meant actually in the original point.).

Hamilton, Ames and particularly Madison made some good arguments but I don't think one can say they "defeated", intellectually speaking, the anti-federalists so broadly without attempting to show how.

I am aware that they are not. However, just as Jeffersonian tenets ruled the day during the first part of the 19th century, Hamilitonian tenets were more de rigor during the late 18th century, and post-Civil War...certainly in much of the 20th Century. Now, without Constitutional interpretation, this would not be possible. Amazing document.

Yes and many people don't consider those developments a good thing.

 

[Australianlibertarian]

The legal question is this?

How do you deal with legal issues that have arisen due to technological changes or changes in society?

Do we accept that the equal protection clause was designed to a certain degree, get the States to enforce black civil rights, and if this is so, then it is inappropriate to extend this clause to other minorities that are facing discrimination?

If that is so, is the legal argument that a referendum should is necessary to decide whether the equal protection clause should extend to non-blacks, or alternately do you amend the constitution to insert a new provision?

Now to be honest, I think that referendums are probably the best way to deal with "un-foreseen" constitutional matters, as it forces society to engage with the issue, as opposed to the judiciary alone.

But my problem is that, if taken to the extreme it could mean that citizens are constantly going to the polls. And constant amendments could turn a constitution into a monstrous statute comparable to the Corporations Act.

Fair enough there are a lot of legal questions in relation to whether Corporations should have been granted legal status as persons under the constitution. But is it really that far fetched by applying the equal protection clause to non-black minorities?

This is not an easy argument, I believe in (Australia at least) there have been far too many cases that the High Court (Australian equivalent of the US Supreme Court) have ruled on, when they should have just said that issue was non-judicial.....Thus forcing the issue to a referendum. But alternately there have been decisions that the High Court has made, that appear to quite conservative, when there was room for judicial interpretation or action.

Lastly, to throw a cat amongst the pigeons, the Mabo (2) was probably one of the High Court's greatest cases of being "judicially creative". At the time many people thought it would cause huge upheaval in relation to property rights and the land rights of Indigenous Australians.... But over time the case, forced the Government to legislate and deal with native title land rights.

Granted, I see the merits of Wessexman's arguments, and I do believe the judges should be very wary of unintended consequences of their actions. And, I do think that more issues should be forced to go to referendum. Consequently, I am wary of judges making a finding that is better left to the ballot box. But at other times, I believe that non-originalist approaches to constitutions can create fundamental positive changes. Granted that this is not always the case (in relation to resolving disputes), as in Rowe v Wade, but I think that Constitutional Interpretation is complex, and not absolute.

 

[Wessexman]

I think there is some truth to what you are saying. After all we are mainly arguing against more liberal attitudes(not CC's necessarily.) that seem to want to allow the judiciary to set up an entire liberal agenda without any use of the legislature or seem to simply have no real idea of a good political philosophy except within a general liberal democratic framework their agenda should be enshrined.

I have no doubt it can have positive results I just don't think it is generally worth the risk, it is a means and ends debate. I also think this "times have changed' line is very over-used as I said most situations can fit into the existing precedent and the judiciary could apply for legislative clarification where this doesn't happen. It seems to me that the exception is being turned into the rule, often to further a particular agenda.

 

[CaptainCourtesy]

You do not explain how I'm creating a strawman. You are suggesting judges be allowed to interpret the constitution to keep up with events even when it is not the original meaning and strict construction of the constitution. This by definition turns it into guidelines because judges can use it broadly to try and squeeze anything in by simply making it somewhat fit the wording despite this having little to do with precedent or original meaning and this by definition gives them arbitrary power because they can decide if two people in the exact same situation face very different outcomes.

No, I am not suggesting that. I am suggesting that the way the Constitution was worded, intentionally allowed for interpretation and that strict construction was never the intent. The idea that each and every contingency could be accounted for was rejected as I have shown. Interpretation was built in.

Also you keep claiming it was what the FF's intended but you are only talking about Hamilton, Ames and the like. Jefferson, Patrick Henry and the anti-federalists for instance had very different ideas.

The anti-Federalists won on the Bill of Rights. The Federalists won on most other things.

A Tory without a king was the term used at the time. There is something of the more absolutist Tory or more precisely something of the Hobbesian about Hamilton.I'm not sure why you keep using him though, he is hardly the most profound theorist among the FF's, in fact beyond the Federalist papers I believe he wrote little in the way of political treatise.

And the Federalist Papers were some of the most important arguments of the time. Even if he did little else, that was enough to make him key. Further, Hamilton had Washington's ear like no one else. Much of Washington's policies were based on Hamilton.

You have given the usual ends over means, we must move with the times speech.

No, I haven't. You've been catastrophizing without any evidence.

But they can have some lee-way which allows not only for a culture of reinterpretation to grow up but can allow a lot of small and medium sized breaches of the rule of law, giving them some arbitrary power. I don't see why this should be done. It would be far better to minimise this where we can.

You're catastrophizing again. Point is, it hasn't grown.

 

[Scarecrow Akhbar]

WRONG, at least about the new rights part.

Here is an example. If there is a law saying you cannot wear blue. And a judge rules that is unconstitutional, then by default of striking down that law a new right is created in the fact you can now wear blue.

That doesn't mean that is judicial activism.

A better example is the activist judiciary that will command cities or states to increase school spending. Are you aware of who's responsible for deciding how much money is spent by the government? Hint: ain't the judges.

Another example is the invented-out-of-whole-cloth notion that babies can be legally murdered in the womb. Not a shred of constitutional basis for that, it it usurped the legislative role entirely.

A third example is the Supreme Court of Floriduh (SCOFLAW) that repeatedly violated state law to help Al Gore steal an election. A superior court that didn't engage in judicial activism at that time put a stop to this.

 

[Scarecrow Akhbar]

No, I am not suggesting that. I am suggesting that the way the Constitution was worded, intentionally allowed for interpretation and that strict construction was never the intent. The idea that each and every contingency could be accounted for was rejected as I have shown. Interpretation was built in.

Interpretation was expected.

Judicial fiat using intentions most specifically not intended is an entirely different matter, as is judicial legislation.

Nobody is going to argue that someone had to decide the Dred Scot case. In a strictly legal sense, the case was decided correctly, ie, property has to be returned to it's owner. It took a war to resolve those moral issues.

But aberrations such as the left using the courts to bypass the Constitution are flat wrong, and absolutely not what anyone who wrote the Constitution intended.

 

[CaptainCourtesy]

Interpretation was expected.

Judicial fiat using intentions most specifically not intended is an entirely different matter, as is judicial legislation.

Nobody is going to argue that someone had to decide the Dred Scot case. In a strictly legal sense, the case was decided correctly, ie, property has to be returned to it's owner. It took a war to resolve those moral issues.

But aberrations such as the left using the courts to bypass the Constitution are flat wrong, and absolutely not what anyone who wrote the Constitution intended.

I think we agree, here, conceptually. Where we probably disagree is what constitutes over-interpretation/judicial legislation. I imagine that our tolerance levels are different.

That's two posts in two days that you and I have seen eye to eye. What's up with that? :mrgreen:

 

[Wessexman]

No, I am not suggesting that. I am suggesting that the way the Constitution was worded, intentionally allowed for interpretation and that strict construction was never the intent. The idea that each and every contingency could be accounted for was rejected as I have shown. Interpretation was built in.

Different people had different ideas about interpretation.

Anyway if it was meant to be reinterpreted, as in the very meaning of passages greatly reinterpreted, then there would not be much point in adding a process for amendments.

The anti-Federalists won on the Bill of Rights. The Federalists won on most other things.

The anti-federalists helped to shape a lot of the rest in a dialectic way, but the constitution was accepted for many reasons by the convention and then the states.

And the Federalist Papers were some of the most important arguments of the time. Even if he did little else, that was enough to make him key. Further, Hamilton had Washington's ear like no one else. Much of Washington's policies were based on Hamilton.

So?

No, I haven't. You've been catastrophizing without any evidence.

I'm erring on the side of liberty and restrained gov't, you have said that we shouldn't do that, for me the most obvious and usual course, and yet have not really showed why. "Times change" is hardly much of an argument because that is simply making the exception the rule at expense of giving quite a bit of arbitrary power, at least, to the judiciary.

You're catastrophizing again. Point is, it hasn't grown.

Yes it has, we've got a point where corporate personhood, legalised abortion and GM(in the states.) were all ontroduced or enforced by judicial activism.

 

[danarhea]

You edited.

Firstly, Hamilton demolished "Brutus' in debate in the Federalist Papers: Hamilton's positions were upheld. And Jefferson used the implied powers for the Louisiana Purchase, so he went along with these powers when it suited him.

And of course political freedom and order requires not only that one have an area of rights and spheres which the gov't cannot interfere with and that are protected. The Constitution covers many rights and spheres that are protected. However, since each and every scenario could not be accounted for, the FFs were wise enough to place powers that would govern these situations and allow the judiciary to place them, contextually in the limits of the Constitution. This requires interpretation. As the FFs acknowledged.

Let me jump in here, if you don't mind.

While you make a compelling argument on the ninth amendment, the tenth amendment restricts the use of the courts defining law in that ANY powers not expressly provided to the Federal government by the Constitution belongs to the states, and to the people. An example of unconstitutional judicial activism would be the Roe v. Wade decision, as it clearly trespasses on the powers of the states.

 

[Hatuey]

The American left's blueprint for getting their way with anything.

1.) draft legislation.

2.) if your agenda fails legislatively, take it to the courts.

3.) if you can't get what you want from the courts, take it to the streets.

4.) repeat as often as necessary until you get what you want

Welcome to Democracy.

 

[Wessexman]

Let me jump in here, if you don't mind.

While you make a compelling argument on the ninth amendment, the tenth amendment restricts the use of the courts defining law in that ANY powers not expressly provided to the Federal government by the Constitution belongs to the states, and to the people. An example of unconstitutional judicial activism would be the Roe v. Wade decision, as it clearly trespasses on the powers of the states.

I'm not sure his argument on the ninth amendment is particularly compelling(we're obviously limiting it to America here.). In my version of the Federalists papers(and Brutus.) there is a copy of the US constitution and the ninth amendment seems to say that the enumeration of any right in the constitution does not deny the people other rights not written in it. To me that suggests restraint and a more strict idea of the construction as it leaves only the powers written in the constitution as those which don't surely trespass these enumerated rights.

The only way one could get a pro-JA interpretation of that would be to take the people to mean the feds and the idea of rights to be the power of the federal gov't.

 

[Wessexman]

....which don't surely trespass these enumerated rights

That obviously should be unenumerated.:doh

 

[Alex]

I do not believe that judicial activism actually exists. The Constitution of the United States is law, so if the judiciary is applying it to cases, they are interpreting the law, not creating it.

Also, Federalist #78 states that judicial review of laws be a power of the courts and that when a law contradicts the Constitution, the law loses out.

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

The Federalist Papers/No. 78 - Wikisource


There is no such thing as judicial activism, its called judicial review and it is part of our constitutional democracy.

 

[CaptainCourtesy]

Different people had different ideas about interpretation.

Sure they did. That's the beauty of this whole thing. Do you see how your desire for less interpretation, is interpretative in an of itself? Strict constructionists only exist because of Constitutional interpretation.

Anyway if it was meant to be reinterpreted, as in the very meaning of passages greatly reinterpreted, then there would not be much point in adding a process for amendments.

You're over reaching AGAIN. There is a difference between interpretation and rewriting.

The anti-federalists helped to shape a lot of the rest in a dialectic way, but the constitution was accepted for many reasons by the convention and then the states.

The anti-federalists has say, for sure. Federalists were stronger at the time. however. This changed by the early part of the 19th Century, and then changed again. It tends to be cyclic.

So?

Thank you. Now we agree on the importance of Hamilton.

I'm erring on the side of liberty and restrained gov't, you have said that we shouldn't do that, for me the most obvious and usual course, and yet have not really showed why. "Times change" is hardly much of an argument because that is simply making the exception the rule at expense of giving quite a bit of arbitrary power, at least, to the judiciary.

I'm not erring on the side of restrained government. I'm erring on the side of using the Constitution as it was intended. You are erring on the side of being a literalist, which was not the intent. And progression is an on target argument. You just do not like it.

Yes it has, we've got a point where corporate personhood, legalised abortion and GM(in the states.) were all ontroduced or enforced by judicial activism.

No, they were enforced by judicial review and interpretation. All things that were intended for the Constitution. They have been argued successfully, using Constitutional tenets.

 

[CaptainCourtesy]

Let me jump in here, if you don't mind.

And if I do? :2razz:

While you make a compelling argument on the ninth amendment, the tenth amendment restricts the use of the courts defining law in that ANY powers not expressly provided to the Federal government by the Constitution belongs to the states, and to the people. An example of unconstitutional judicial activism would be the Roe v. Wade decision, as it clearly trespasses on the powers of the states.

But it does not trespass on the rights of the people, part of the 10th Amendment. Further, both the 9th and the necessary and proper clause, allow the judiciary to act as they did. With the people's rights (privacy) and the 9th, the 14th and the necessary and proper clause all trumped the single section in regards to the states in the 10th, as far as the USSC was concerned. Not only was it Constitutional, but the judges were able to use several tenets to support the decision.

 

[Wessexman]

Sure they did. That's the beauty of this whole thing. Do you see how your desire for less interpretation, is interpretative in an of itself? Strict constructionists only exist because of Constitutional interpretation.

Of course it is interpretative but it doesn't require allowing any other interpretations.

This talk of interpretation is fudging it a little. Of course one has to interpret laws in light of the constitution and situations in light of both laws and the constitution but that doesn't mean one has to reinterpret the constitution.

You're over reaching AGAIN. There is a difference between interpretation and rewriting.

That depends on whether you are basing your situations on original meaning and strict construction. What your basically saying is there a few situations where this may prove hard so what the hell let's abandon it, let's not appeal to the legislature, let's just allow most situations to be have judicial reinterpretation of the constitution and laws while only paying a little attention to original meaning and precedent.

Thank you. Now we agree on the importance of Hamilton.

Not really. I think though it may have been harder for you somewhat you would have done better my quoting Jay and Madison more.

I'm not erring on the side of restrained government.

Well that says it all. One should almost always be restrained in his ideas of gov't.

I'm erring on the side of using the Constitution as it was intended.

By some.

You are erring on the side of being a literalist, which was not the intent. And progression is an on target argument. You just do not like it.

No sir, I do not like arbitrary power.

[=
No, they were enforced by judicial review and interpretation. All things that were intended for the Constitution. They have been argued successfully, using Constitutional tenets.

Firstly you are trying to use one side of the arguments to the exclusion of the other, secondly you are move trying to argue what is allowed than what is good and thirdly I'm not seeing why this arbitrary power and lack of restraint is a good thing and why it we should not err on the side of caution and restraint even if we accept your idea that the abuses are only mild and will not lead to any kind of culture of activism.

 

[CaptainCourtesy]

Of course it is interpretative but it doesn't require allowing any other interpretations.

This talk of interpretation is fudging it a little. Of course one has to interpret laws in light of the constitution and situations in light of both laws and the constitution but that doesn't mean one has to reinterpret the constitution.

You're wavering, Wessexman. Chink in the armor. :mrgreen: Of course one has to interpret the Constitution in light of laws, the constitution, and situations. Perhaps you are confused over the concept of interpretation. Please define.

That depends on whether you are basing your situations on original meaning and strict construction. What your basically saying is there a few situations where this may prove hard so what the hell let's abandon it, let's not appeal to the legislature, let's just allow most situations to be have judicial reinterpretation of the constitution and laws while only paying a little attention to original meaning and precedent.

No, that's not what I'm saying at all, though I'm sure that would be what you'd like me to be saying. I'm talking about using the Constitution as it was designed: to make determinations of situations, even those not expressly identified within.

Not really. I think though it may have been harder for you somewhat you would have done better my quoting Jay and Madison more.

Could've. Didn't need to. Proved my point with Hamilton alone.

Well that says it all. One should almost always be restrained in his ideas of gov't.

In your opinion. Not how I or many others see or saw it.

By some.

NOW you're getting it.

No sir, I do not like arbitrary power.

Over reacting again. You do know the definition of "arbitrary"? It is not what I am advocating or supporting. Please try to confine your responses to discussing my positions, not your absolutist and extreme versions of my positions. It is getting tiring correcting you.

Firstly you are trying to use one side of the arguments to the exclusion of the other,

Not in the least. I am demonstrating how things were intended and have been done. All you are doing is arguing that you don't/didn't like/agree with how things were intended and have been done.

secondly you are move trying to argue what is allowed than what is good

Actually, I am doing both. I am arguing what is allowed and how it is good. All you are arguing is how it is bad. More of an appeal to emotion I would think.

and thirdly I'm not seeing why this arbitrary power and lack of restraint is a good thing and why it we should not err on the side of caution and restraint even if we accept your idea that the abuses are only mild and will not lead to any kind of culture of activism.

And I'm not seeing why it is that you are making absolutist declarations of my position when that is not what I am saying, and I'm not seeing why we should not err on the side of progression and movement when there are plenty of checks and balances for potential abuses, and when not doing so is a more staid and anti-progressive position.

 

[Wessexman]

You're wavering, Wessexman. Chink in the armor. :mrgreen: Of course one has to interpret the Constitution in light of laws, the constitution, and situations. Perhaps you are confused over the concept of interpretation. Please define.

Not wavering as I said the exact same things in my debate with Orius.


It is quite simple the obvious fact interpretation is required does not mean that the constitution has to be reinterpreted if it isn't changed or laws that have long been held to mean something changed without any legal or constitutional changes.

For instance with the 2nd amendment one interprets laws and situations to see if they sufficiently go against this amendment but there is no need to reinterpret the amendment to mean anything but an individual right to bear arms but if you had your way it would be the first to go.

No, that's not what I'm saying at all, though I'm sure that would be what you'd like me to be saying. I'm talking about using the Constitution as it was designed: to make determinations of situations, even those not expressly identified within.

Okay, I did not disagree with this simply that this does not require redefinition of the constitution.

Could've. Didn't need to. Proved my point with Hamilton alone.

:lol:

In your opinion. Not how I or many others see or saw it.

Well in anyone who wants a free gov't.

Over reacting again. You do know the definition of "arbitrary"? It is not what I am advocating or supporting. Please try to confine your responses to discussing my positions, not your absolutist and extreme versions of my positions. It is getting tiring correcting you.

Please try and actually make arguments instead of these lame accusations. There is arbitrary power involved as I have shown, it may only be small and medium sized amounts but I have seen precious little from you to state why this should be.

Not in the least. I am demonstrating how things were intended and have been done. All you are doing is arguing that you don't/didn't like/agree with how things were intended and have been done.

Actually you have shown one person's views, those of Hamilton and we are talking about what we think should be done by definition. We are having an argument over political or judicial philosophy.


Other people at the time disagreed if you want to keep trying to make a lame argument based on liberal interpretations of what Hamilton is saying.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"There is another opinion entertained by some men of such judgment and information as to lessen my confidence in my own. That is, that the Legislature alone is the exclusive expounder of the sense of the Constitution in every part of it whatever. And they allege in its support that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the Constitution. It may, indeed, be answered that an act may still be valid although the party is punished for it, right or wrong. However, this opinion which ascribes exclusive exposition to the Legislature merits respect for its safety, there being in the body of the nation a control over them which, if expressed by rejection on the subsequent exercise of their elective franchise, enlists public opinion against their exposition and encourages a judge or executive on a future occasion to adhere to their former opinion. Between these two doctrines, every one has a right to choose, and I know of no third meriting any respect." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:305

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212

Actually, I am doing both. I am arguing what is allowed and how it is good. All you are arguing is how it is bad. More of an appeal to emotion I would think.

Not really as I have formed proper arguments, you are the ones whose entire argument that it is good seems to revolve around "times change".

Is it possible you could debate without prematurely claiming victory?

And I'm not seeing why it is that you are making absolutist declarations of my position when that is not what I am saying, and I'm not seeing why we should not err on the side of progression and movement when there are plenty of checks and balances for potential abuses, and when not doing so is a more staid and anti-progressive position.

We should not because it is an abuse. It means that the rule of law may be potentially flouted, even if only in a small or medium sized degree so that two people in the exact same situation can face different outcomes, it gives the judiciary the arbitrary power to do this. This mean s they have quite a bit of power, they do not just rule on the law and the constitution they have the power to decide and change what it means.

But why? Progression, which is about as much an appeal to emotion as you can get, is hardly an argument in itself. The balances require quite an effort, in fact even the changing of a constitution and don't stop at least temporary outcomes of this Judicial activism.