The Left Needs to Take Back the Constitution

[Cordelier]

I think the intent behind each amendment (and every other operative passage in the Constitution) requires study. I have read much on the history of the 9th and 10th and understand why they were written and ratified. Have you?

Yeah, well, intent is pretty subjective - especially if you're trying to interpret it 200+ years on. I put a lot more weight on the actual text that was ratified.

 

[Jredbaron96]

I'm not desperate. I'm intellectually consistent.

Consistency is not a suitable replacement for rationality.

 

[Jredbaron96]

The place I'm in is the right place, provided one values a democratic form of government. And I do.

It has nothing to do with democracy, this is just something you say to try to make your position seem more noble or honest.

The reason that basing the entirety of judicial interpretation on intent is foolish is because laws, especially important, big laws or legal documents like constitutions, are exercises in compromise, and very often the "intent" behind the law will vary depending on the lawmaker involved in question. Hamilton and Jefferson had very different ideas on how the United States should develop, just as modern day lawmakers when drafting congressional legislation will often be forced to make amends or changes to gain the support of other legislators who may not share the same intent.

Which ultimately leads to judges interpreting "intent" with the same level of personal bias and belief that you lament so much as "activism".

Which is why the history of originalist justices, which you continue to blindly proclaim is apolitical, is full of justices picking and choosing what "intent" they'll consider as valid.

Or they'll just ignore it completely, like in W. Virginia V EPA where SCOTUS simply refused to examine either the text or intent of the law, despite holding that such measures are the only way to validly interpret and dispense judicial rulings.

 

[NatMorton]

Unenumerated rights may be neither denied nor disparaged by their lack of enumeration. What's more, with the ratification of the 14th Amendment, the rights possessed by the people on a Federal level are also held to exist on a State level, are they not? Substantive due process and all of that.

Okay, then what about, say, a 10-week-old fetus's unenumerated right to life? How can that be "denied or disparaged" by its lack of enumeration?

 

[NatMorton]

Yeah, well, intent is pretty subjective - especially if you're trying to interpret it 200+ years on. I put a lot more weight on the actual text that was ratified.

I agree, intent can be subjective, but I certainly prefer the subjective assessment of a court making a good faith effort to asses intent vs any form of judicial activism.

 

[NatMorton]

Consistency is not a suitable replacement for rationality.

There's nothing rational about your approach to jurisprudence. Like most activists, you simply identify the outcome you seek and reverse engineer the judicial reasoning from there.

 

[Doppelgangirl]

Sounds like slavery.

That would be forced pregnancy. 24/7 labor required by the state….

 

[Cordelier]

Okay, then what about, say, a 10-week-old fetus's unenumerated right to life? How can that be "denied or disparaged" by its lack of enumeration?

Because that right doesn't exist. Rights are only possessed by persons. Says so right in the Constitution.

 

[NatMorton]

It has nothing to do with democracy, this is just something you say to try to make your position seem more noble or honest.

Sorry, that's just dead wrong. The doctrine of original intent has everything to do with preserving democracy.

You may not like Alabama's abortion law, but it is the product of a democratic process. The only legitimate means for overturning a state's democratically enacted state law is a democratically enacted national law, and the source of national law is the Constitution. Judges don't author Constitutional provisions; a super-majority of Congress and the states do. So where the Constitution is silent, the Congress and the states (as a group) are silent, and thus no court on its own has the authority to overturn a state law.

 

[Cordelier]

I agree, intent can be subjective, but I certainly prefer the subjective assessment of a court making a good faith effort to asses intent vs any form of judicial activism.

Is it judicial activism to take into account the text of the Constitution - the whole text - and not to selectively ignore key components of it?

Because that's all I'm advocating. Every word and punctuation mark within the Constitution is there for a reason - there are no wasted or superfluous clauses. The same words used in the same context ought to be interpreted to have the same meaning. Is that activism???

To me, the "judicial activists" are those who use their subjective interpretations of what they deem original intent to ignore whole sections of the written and ratified word.

 

[Doppelgangirl]

LMAO!

There have been many societies which have loosely defined the term "person" to suit their goals and needs. This allows them to treat the "non-person" as unworthy of consideration.

Examples include: The "untouchables" in the Buddhist and Shinto realms, the Jews and gypsies in Nazi Germany and Tzarist Russia, anyone who is not Chinese in China, the native Indios in Latin America, the Tutsis in Rwanda, etc., etc.,

I don't see the unborn as a parasite, a leach, a cancer, etc.. I see each one as initially a developing and then eventually an unborn human being.

None of your examples lived inside *another* person’s body, nor required another, specific human for continued existence.

 

[Doppelgangirl]

Some Basic Biology (as regards Human Reproduction)-

The Gametes:
Spermatozoon- average male orgasm produces nearly 100MIL live wiggly tadpole shaped microscopic-sized sperm.
Sperm lucky enough to enter a vagina engage in a race to the Fallopian tube in a quest to fertilize Ova. Most of the sperm die in the process. Success creates a fertilized Ovum and a Zygote. In the course of roughly two weeks, the Zygote germinates by a process known as mitosis and becomes an Embryo for about eight weeks, then a fetus until birth as an infant. Time from conception until full term birth averages about 40 weeks.

Gender usually determined by sex chromosomes-

Woman: XX; from puberty to menopause, experience monthly menstrual periods, producing ova between each period.

Male: XY
Each sperm: either X or Y; the sperm generated by a male that fertilizes the Ova determines the sex of the infant. Of course, intersex anomalies sometimes occur.

Discussion often divides a full term pregnancy into three 3 month trimesters. I personally do not know a single person who advocates for the Right to Abort a healthy fetus during the last trimester.

Fetal Development: Week-by-Week Stages of Pregnancy

Fetal development is how a fetus grows during pregnancy. It begins at conception and ends at birth. Many changes occur to the fetus and the pregnant person in this time.

my.clevelandclinic.org

Some Pro Life Advocates frequently resort to describing abortion as murder or homicide. IMO, the current Conservative Majority on the USSC poses an alarming Nationwide concern to personal freedom, health, welfare and pursuit of happiness.

Science!

 

[NatMorton]

Is it judicial activism to take into account the text of the Constitution - the whole text - and not to selectively ignore key components of it?

Assuming by that you mean the intent of those who codified the text, no. That is precisely the opposite of judicial activism.

Because that's all I'm advocating. Every word and punctuation mark within the Constitution is there for a reason - there are no wasted or superfluous clauses. The same words used in the same context ought to be interpreted to have the same meaning. Is that activism???

Honestly, no, I don't think that's what you're advocating for. You may not realize it, but I think you're advocating that judges do what you think is the "right" thing to do, regardless of what the Constitution says or does not say

To me, the "judicial activists" are those who use their subjective interpretations of what they deem original intent to ignore whole sections of the written and ratified word.

It doesn't matter how someone departs from original intent. If they depart from it, they are engaging in judicial activism.

 

[The Mark]

That's nice, but I stand by my point. Roe was the illegitimate implementation of liberal policy by the Court. Dobbs was apolitical.

Nothing and no one is apolitical.
The Dobbs decision definitely was not. And neither was the Roe decision.

We could argue over whether the justices in those two examples tried to be impartial, but apolitical isn't even on the table as an option.


It is my personal opinion that the Dobbs decision was not an impartial one.
Possibly the Roe decision too, but I wasn't alive then to witness events and haven't made much study of them since.

 

[NatMorton]

Yeah, well, intent is pretty subjective - especially if you're trying to interpret it 200+ years on. I put a lot more weight on the actual text that was ratified.

... and by that reasoning, our words in this medium are not protected by the First Amendment. It only says freedom of "speech." The text of 1A does not discuss writing, and it certainly doesn't speak to digital communications.

The only way you and I are protected here is if we understand and agree that the framers intended the first amendment to protect freedom of expression, even though the the word "expression" appears nowhere in the text of the Constitution.

 

[NatMorton]

Nothing and no one is apolitical.
The Dobbs decision definitely was not. And neither was the Roe decision.

We could argue over whether the justices in those two examples tried to be impartial, but apolitical isn't even on the table as an option.


It is my personal opinion that the Dobbs decision was not an impartial one.
Possibly the Roe decision too, but I wasn't alive then to witness events and haven't made much study of them since.

We will agree to disagree. Roe imposed a specific policy standard. Dobbs did not.

 

[Fishking]

Doesn't grant personhood to fetuses, though. In our Constitutional system, rights can only ever be held by persons.

I didn't say anything about personhood status, but what is "personhood" is a philosophical question, which means it can have any number of definitions. Historically, denying the personhood of various groups of humans has always been bad.

 

[Cordelier]

Assuming by that you mean the intent of those who codified the text, no. That is precisely the opposite of judicial activism.


Honestly, no, I don't think that's what you're advocating for. You may not realize it, but I think you're advocating that judges do what you think is the "right" thing to do, regardless of what the Constitution says or does not say



It doesn't matter how someone departs from original intent. If they depart from it, they are engaging in judicial activism.

But I'm the one advocating for a strict textual analysis of the Constitution. Like in our 10th Amendment disagreement - to you, interpreting the phrase "or to the people" is just simple word games. It's inconvenient to your argument, so you just toss it out. It just gives the people the same guarantee that Article IV §4 had already given them. That's certainly a subjective analysis.

On the other hand, since they were already guaranteed the right to participate in a republican form of Government, I sincerely doubt that that power would have been re-asserted in the 10th Amendment... especially so given the use of the word "or" to distinguish the 10th Amendment powers of the people from those of the State. After all, if they were one and the same, there would be no need to differentiate between them, would there?

It therefore seems obvious to me - believing as I do that every word has meaning and none are superfluous - that it was obvious the Founders intended the 10th Amendment to be a separate and additional grant of power to the people by which means they may assert individual rights against the State entirely outside of the democratic process afforded to them by Article IV §4.

A right is a right, is it not? Even if it is asserted by 1% of the population and the other 99% are opposed, do they not still possess that right? Or are we to live under tyranny of the majority?

 

[Cordelier]

I didn't say anything about personhood status, but what is "personhood" is a philosophical question, which means it can have any number of definitions. Historically, denying the personhood of various groups of humans has always been bad.

Depends on the context of the discussion... in a legal context, the concept of "personhood" is clearly enshrined within our Constitution, and there is no basis for maintaining it can ever apply to the unborn.

 

[Cordelier]

... and by that reasoning, our words in this medium are not protected by the First Amendment. It only says freedom of "speech." The text of 1A does not discuss writing, and it certainly doesn't speak to digital communications.

The only way you and I are protected here is if we understand and agree that the framers intended the first amendment to protect freedom of expression, even though the the word "expression" appears nowhere in the text of the Constitution.

Our words in this medium aren't protected, Nat. They can be edited, deleted, or manipulated however the Administrators of this website choose.

 

[Doppelgangirl]

Assuming by that you mean the intent of those who codified the text, no. That is precisely the opposite of judicial activism.


Honestly, no, I don't think that's what you're advocating for. You may not realize it, but I think you're advocating that judges do what you think is the "right" thing to do, regardless of what the Constitution says or does not say



It doesn't matter how someone departs from original intent. If they depart from it, they are engaging in judicial activism.

Does it concern you that our “free” nation is held hostage to 18th century mores? That’s “originalism”-
Originalists are (imho) like Cafeteria Catholics.
Open to selective interpretation and not a solid basis for law.

 

[Fearandloathing]

I think religious debate is a great thing... I've been known to indulge in it myself from time to time - there's a reason my avatar is a Bishop. I love the tradition of Rabbinical debate and all of the sheer human intellectual capital that has been invested by untold generations across all faiths to try to answer the unanswerable questions of existence. So I've got that side to me... and it tells me abortion is wrong. Deeply wrong.

But there's the chess side as well. However you play the game, the other pieces have their roles to play as well. King's Bishop plays a different game than Queen's Bishop. What I do or how I feel spiritually or morally, I've got to realize that I am only one piece of the puzzle, and my perception has no bearing on anyone else's. At the end of the day, it's only the commonly-understood rules of the game that tie us all together.

Debate itself is a great thing, when it remains debate. You make valid points, points any society would aspire to.

However in America, debate on anything is war, not expressions of ideas, but nuclear explosions of resentment and anger. If a democrat proposes a law to reduce corporate taxes, allow tax relief for middle income investors, protect education for all, while raising the bar for income for the truly poor with a rider forcing people to keep handguns with a trigger guard.......
The headlines would range from "Liberal Comunist wants your guns!" to, "Satan is here and he wants your guns!" and then the "debate" will degenerate into the same old, tired and weary back-and-forth right/left mudslinging bullshit.

I no longer believe that the majority of Americans want a better country for everyone; they want a better 'deal' for their side and **** those who don't agree.

The bishop thing is cool, but fails to note that the bishop is the second most powerful piece on the board in middle and late game. Pawns and horses clear the field so the tanks and artillery (Bishops & Rooks) can close in and trap the king, while the queen delivers the killing blow.

However the history of the church ruins it as a symbol IMO. Bishops are evil. Over one thousand of them (still alive) have been identified and or accused outright of sex crimes against children in Canada and the United States. The Vatican hides them and refuses to co-operate with investigators. Here, we just had the pope drop in and plead for forgiveness for the deaths and torture of Canadian Indians as late as 1998. The rest are protecting the monsters.

Great White Sharks are a better symbol of 'peace', they only kill to eat.

 

[Captain Adverse]

None of your examples lived inside *another* person’s body,

LOL! ALL of my examples are human beings, which means that they ALL went through the very same process of conception, growth, and development as both you, I, and all humans did and still do. Yet in every case they were still labeled as "non- or sub-human" and thus slaughtered without care or remorse.

...nor required another, specific human for continued existence.

Both silly and irrelevant for the same reason a "born" baby is human. A baby cannot take care of itself for YEARS!

Some "specific individual," whether a parent, a foster parent, someone assigned to in a hospital, or an orphanage, or whatever method of care has to provide for its continued existence.

Your arguments are not new. They are the same tired, self-centered, emotional, and illogical "me! me! me!" assertions which treat this process of human creation as some kind of horrible "burden." As opposed to recognizing that it is not only the natural method leading to all humans who ever lived, but is also completely preventable by various methods including prophylactics, and abstinence.

Meanwhile, I will remind you that I am not completely opposed to abortion. I simply do not agree that it can occur at absolutely any time prior to actual birth.

 

[NatMorton]

But I'm the one advocating for a strict textual analysis of the Constitution. Like in our 10th Amendment disagreement - to you, interpreting the phrase "or to the people" is just simple word games. It's inconvenient to your argument, so you just toss it out. It just gives the people the same guarantee that Article IV §4 had already given them. That's certainly a subjective analysis.

On the other hand, since they were already guaranteed the right to participate in a republican form of Government, I sincerely doubt that that power would have been re-asserted in the 10th Amendment... especially so given the use of the word "or" to distinguish the 10th Amendment powers of the people from those of the State. After all, if they were one and the same, there would be no need to differentiate between them, would there?

It therefore seems obvious to me - believing as I do that every word has meaning and none are superfluous - that it was obvious the Founders intended the 10th Amendment to be a separate and additional grant of power to the people by which means they may assert individual rights against the State entirely outside of the democratic process afforded to them by Article IV §4.

A right is a right, is it not? Even if it is asserted by 1% of the population and the other 99% are opposed, do they not still possess that right? Or are we to live under tyranny of the majority?

I'm not a strict textualist. Word meanings can change over time, so such an approach makes absolutely no sense to me.

The history of the 9th and 10th was all about resolving the ambiguity of enumerating some rights in the Constitution and not others. The framers did not want the federal government to be inventing new authorities on the fly, so 9 and 10 were specifically about limiting the power of the federal government. That was there intent, and any use of the 9th or 10th to limit what people or the states can do is simply inconsistent with the purpose of those amendments.

(Edit: after the 14th, the 9th and 10th can be use to restrict states base on infringement of enumerated rights.)

 

[NatMorton]

Our words in this medium aren't protected, Nat. They can be edited, deleted, or manipulated however the Administrators of this website choose.

By protected I mean protected from the federal government. You or I cannot be thrown in jail because either of us says "Joe Biden is a fathead" in this thread because of our First Amendment protections. That is the point.