Should The Senate Confirm Elena Kagan

Kandahar said:

I didn't say that YOU supported slavery, I said that THEY did, and therefore you DON'T derive your political views from theirs. I think my meaning was pretty obvious. After all, it was written in English and we both speak English. Surely you should have no problem interpreting MY words correctly (especially after it's already been explained to you), given your expertise in interpreting the Constitution correctly where just about every Supreme Court Justice in the last 200 years has failed.

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Yes but you are drawing a parallel.
I said "I derived", not "I believe the exact same thing."

You know exactly what I meant.

Kandahar said:

A) Why? Just because they created one process doesn't mean it has to be used for everything.
B) Even if that is what they intended, this is still based on the premise that everyone shares your view that what the Founding Fathers would have wanted is the most important thing.
C) Again, they were not a monolithic entity. It is hardly inconceivable that some might have only wanted to use the amendment process whereas others might be open to looser interpretations.
D) From a practical standpoint, the amendment process is simply too cumbersome. Even if it's what they intended, they either grossly miscalculated how difficult it would be, or they simply weren't planning for a continental nation made up of 50 states.

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A) That is the legal methodology. The rule of law is meant to keep emotions at bay, so level heads will prevail.

B) It isn't really what they wanted as the most important thing, it's the concept of the rule of law and not the rule of man.
Sure laws are made by men but if they are reasonable and universally agreed upon.
We have a good starting point.

C) That's unfortunate for them, they should of tried to included that as a statute in the document.

D) Again, that's unfortunate but that is the law.
I'm sure if it were really important you could get enough people to change it.
It was made difficult on purpose, to act as a guard against ambitious men attempting to gain more unjust power.
I personally like it that way.

It's my guard against the wants and whims of "the people."

Kandahar said:

The Constitution has been interpreted ever since the ink was still wet.

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It has, which is a slow tragedy in my mind.
That's not how law is supposed to work.

Kandahar said:

Because (and I know this is inconceivable to you) some of us simply don't share your view that the government can't do anything right and that society functions best when government doesn't do anything. But again, this is a separate topic for another thread.

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The problem is though.
While you disagree, people like you are trying to force me to live within your society of positive rights.
I'm not asking for that, I'm asking to keep the original society of negative rights.

Kandahar said:

Where in the Constitution does it say to consult the Federalist Papers for the correct interpretation? Are you sure you aren't perhaps interpreting something that isn't there? The Founding Fathers could have easily mentioned that in the Constitution if that's how they actually wanted it to be interpreted.

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It doesn't but the people who wrote The Constitution, explained their reasoning in the federalist papers.
They were used to give people a clearer understanding of what the Constitution meant from the mouths of the framers.
It definitely has it's place.

Kandahar said:

But of course, your own interpretations have none of that bias. They're the correct view.

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I never said that, in fact I said that I do have a bias.
My bias is similar to those who wrote the original document.
I believe in negative rights, the principals of the enlightenment and liberalism.

Kandahar said:

OK, take a crack at this passage. Tell me how I should interpret this from a constitutional fundamentalist perspective:



Article II repeatedly refers to the president as "he." Presumably the Founding Fathers (at least some of them) meant the "he" literally, since they did not even guarantee women the right to vote. No subsequent amendments have made it clear that women are allowed to serve as president. So in your expert opinion, is a woman constitutionally eligible to serve as president? And if so, the enumerated powers of the president also refers to "he." So even if a woman is able to serve as president, is she able to exercise these powers?

(And no, I'm not calling YOU a misogynist so don't even go there. :roll

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Technically no, they can't serve as president.
The ERA was never passed, so yes they can keep females from becoming president.

Kandahar said:

Why? Just because YOU might not have done it that way doesn't mean that THEY wouldn't have. (And again, this is premised on the assumption that I care how they "meant" for it to be interpreted, which you seem to take as a given.)

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Because it has a fixed meaning, it is the law.
Laws are fixed until changed.

The amendment process is in The Constitution for making changes.

Kandahar said:

I'm not sure what the point of this exercise is. Any constitutional change I suggest, you'll either respond with "That's not a legitimate function of government" or "That's already clearly enumerated in Article Z, Section Y, just as the Founders obviously would have wanted, because I say it is." So do we really need to go through the motions of this exercise?

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The founders created the amendment process so we could change it as needed.

Now I probably won't agree with your amendments but I don't need to pull up the founders for that, it's unnecessary.
I'd debate you based on their utility.
Honestly I'd rather debate amendments, than go through the discussion we're having now.

I think this whole debate revolves around, The rule of law vs. The rule of man.

the makeout hobo said:

Show me where the Constitution disagrees with me.

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It doesn't specifically say they are the final arbitrator of what The Constitution means.
I think it doesn't for a reason.

That it was well understood what The Constitution meant.

Harry Guerrilla said:

It doesn't specifically say they are the final arbitrator of what The Constitution means.
I think it doesn't for a reason.

That it was well understood what The Constitution meant.

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If it was well understood, why do we need a court?

the makeout hobo said:

If it was well understood, why do we need a court?

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To prevent the legislator and the executive from abusing their power.

"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 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."

Article Three of the United States Constitution - Wikipedia, the free encyclopedia

Here is Hamilton's reasoning on the matter.
They do have the power to review that law but The Constitution is to be reviewed from a fundamentalist perspective.

Clearly, they can't just make **** up out of thin air.

Harry Guerrilla said:

To prevent the legislator and the executive from abusing their power.

"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 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."

Article Three of the United States Constitution - Wikipedia, the free encyclopedia

Here is Hamilton's reasoning on the matter.
They do have the power to review that law but The Constitution is to be reviewed from a fundamentalist perspective.

Clearly, they can't just make **** up out of thin air.

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Your source backed up what I just said." It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. " The courts are the final decision makers of what is or isn't constitutional. You may disagree with them, but their interpretation is the legally binding one.

the makeout hobo said:

Your source backed up what I just said." It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. " The courts are the final decision makers of what is or isn't constitutional. You may disagree with them, but their interpretation is the legally binding one.

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Yes, the courts are the final decision makers in a legal sense on if something is or isn't constitutional. But if one day the courts ruled that the government was allowed to ban fringe political parties, I would think that anyone with any respect for the Constitution would consider that an unconstitutional ruling.

And while that is an extreme example that I hope would never become a reality, it highlights why I'm highly distrustful of schools of constitutional interpretation that favor judicial activism. SCOTUS is the least accountable branch of the federal government. They are not accountable to the people and the only way to remove them short of death or voluntary retirement is impeachment. Without something to restrain them (whether its the actual text of the constitution or the intent of the authors) what is the prevent them from doing whatever they want? More activist friendly schools of interpretation grant the court virtually unlimited power once its no longer bound by the letter or intent of the original Constitution, which is supposed to be the highest law of the land. If we ever had an extremely court that was so inclinded, it could dismantle our freedoms with just a handful of rulings. Now I don't think we are in danger of seeing that happen, but I do think a number of rulings have expanded government authority far beyond what the Constitution actually was supposed to allow. Some of those rulings I feel are probably necessary in the modern world, but should've been addressed via amendments. But with the acceptance of judicial activism, the need for amendments is less pressing. Why go through the admittedly difficult process of amending the Constitution which would require the consent of the people (through their elected representatives) and the states (through the ratification process) when we can rely on an activist court that is relatively immune to accountability instead? Those who favor a more activist approach have never really explained to me how their philosophy of interpretation provides any meaningful check on the court's power of interpretation beyond whatever vague personal restraint the individual justice imposes on himself due to respect for the "spirit" of the Constitution, which they are free to re-define however they see fit.

Psychoclown said:

Yes, the courts are the final decision makers in a legal sense on if something is or isn't constitutional. But if one day the courts ruled that the government was allowed to ban fringe political parties, I would think that anyone with any respect for the Constitution would consider that an unconstitutional ruling.

And while that is an extreme example that I hope would never become a reality, it highlights why I'm highly distrustful of schools of constitutional interpretation that favor judicial activism. SCOTUS is the least accountable branch of the federal government. They are not accountable to the people and the only way to remove them short of death or voluntary retirement is impeachment. Without something to restrain them (whether its the actual text of the constitution or the intent of the authors) what is the prevent them from doing whatever they want? More activist friendly schools of interpretation grant the court virtually unlimited power once its no longer bound by the letter or intent of the original Constitution, which is supposed to be the highest law of the land. If we ever had an extremely court that was so inclinded, it could dismantle our freedoms with just a handful of rulings. Now I don't think we are in danger of seeing that happen, but I do think a number of rulings have expanded government authority far beyond what the Constitution actually was supposed to allow. Some of those rulings I feel are probably necessary in the modern world, but should've been addressed via amendments. But with the acceptance of judicial activism, the need for amendments is less pressing. Why go through the admittedly difficult process of amending the Constitution which would require the consent of the people (through their elected representatives) and the states (through the ratification process) when we can rely on an activist court that is relatively immune to accountability instead? Those who favor a more activist approach have never really explained to me how their philosophy of interpretation provides any meaningful check on the court's power of interpretation beyond whatever vague personal restraint the individual justice imposes on himself due to respect for the "spirit" of the Constitution, which they are free to re-define however they see fit.

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I'm confused, what are you suggesting here?