This thread springs off the debate Here surrounding the 2nd amendment.
Every time I hear Americans arguing about the law, the major focus is on weather the law is constitutional. This I get. I understand that a system of laws needs a fundamental basis in order to function properly and avoid rule by fiat fro the highest courts and lawmakers. This makes sense.
What I don't get is the folks who always fall back on the "intent of the founding fathers". They treat the document like changing it, perhaps altering a position within it, would be sinful and awful. The document was written by a bunch of old white men over 200 years ago. Who cares what their intent was? The important point is that the document makes sense for today.
Specifically with regards to the second amendment, I often see statements like this, form the other thread:
I agree that Historical context is important, but I disagree that it supports your position. The historical context of this clause is that the people had just finished fighting a rebelion, using their own private weapons, that they would have been unable to win otherwise. Notably, their own private weapons were of the same (metaphorical) caliber as the military they were fighting.
That is the historical context we're talking about.
(Note: I'm not arguing that we should allow bazookas, etc. But, a strict "historical context" analysis would certainly indicate that we should).
If the phrasing of the amendment is problematic, why not change it? Why not define it, limit it, etc...? It doesn't make any sense to be sales to the intent of men dead for hundreds of years. the founding father were great men, yes, responsible for the founding of the most influential nation in modern history, but they were just MEN, not Gods, not Superheros.
Why do Americans care so much what the intent of the framers was, to the extent that it overrides reason and even common sense for many?
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the reason I think that so many hold not just the spirt of the constitionbut the internt of the writeres and origial text in such high regard is threefold
1 it si a matter of trasdiotin and nation al pride I am proud of teh fact that my cultural ancestors were th forerunners for the perriod of history that saw the most social upheavlas and revoltuitons. most amerricals try to beleive that the spirit of america, while true it may need to be evovledto modern, life still shoud be rooted in the tradtions asnd phiposphies that gave birth toit.
2 it is also imprtant to remeber thast while the ammendments are part of the consttion, they arte the original writers answer to you r percweived problem of the orig. documnet needing to grow with the new nation. it is the bill of rigths and its utter simpliicuyt at establidhing the basis of western thougt as far as rigths are concerned that is directly responcible for the rise of america as such an influential and powerful nation. evene parts of it that are debatelby less important to modern civilation as the were there should not be reoved with out careful consideration. for exampl lthe second amendment. the right for an individual; citizne to bear arm may have no bearing ton thelikely hood of the gov. being or not beig able to supress a rebellion, or on a family being avbl;e to defends there home , (assuming the police are good enough to do that job, which they usuallly are)
but uit is a good reader for how trustworthy the gov or peoplare . the minute the gov. thinks they cant reust the general population with guns to teh point that they want to curtail what were originally intented to be imutable right , the same minute that gov. becomes untrustworthy to be a gov. IMO.
the same is true for alot of teh otehr rights tjhat some maty semieffective argue are not as relevnet to modern life. it si not that I need to ow agun or any thing else.the rigth we are afforded formour gov. is a two way trust contract. they trust uis with guns( for example ) and because of that we trust them with control.
3 the ideals put forth in the constitution were largely a product of the christian worldview dominant among the founding fathers . therefore alot of modern christian americans view this philosphy as the basis of their thinking of america as a christian natin and tehr fore view arguments against thephilosphies and perinciples in teh constitution as attack on thier faith despite it not being a holy text
"Please don't disillusion me. I haven't had breakfast yet."
-Children of the Mind
to whom it may concern: i apologize in advance for any gspelling or grammar errors in py posts. for some reason i am just not as
good at tyoing or proofreading as i would like to be
The reason the "intent of the founding fathers" is so critical, is the fact that conflict and disagreement are a zero sum game, and we all need to be playing by the same rules.
They treat the document like changing it, perhaps altering a position within it, would be sinful and awful. The document was written by a bunch of old white men over 200 years ago. Who cares what their intent was? The important point is that the document makes sense for today.
The intent is important as it directs how things are to be upheld. they didn't want a changing docuement that could be altered to ones whim which avoids major corruption hence why it is almost impossible to change.
there are thousands of amendments to the constitution every year and they all fail.
they usually never make it out of committee.
If the phrasing of the amendment is problematic, why not change it?
It isn't problematic except for those that want to control the freedoms of others.
The 2nd amendment was for several reasons.
1. that an armed public is a safer public
2. that an armed public is harder to control power wise.
3. That if anything would happen that the US would be invaded that the normal citizen could take up arms to fight and defend their country.
it was also put in place to protect themselves from an out of control government as well.
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What I don't get is the folks who always fall back on the "intent of the founding fathers".
You don't think why the people who wrote the document wrote it in the first place is important when attempting to interpret a document?
If the phrasing of the amendment is problematic, why not change it? Why not define it, limit it, etc...?
That's exactly what the purpose of the Supreme Court, the governing body whose job it is to interpret the Constitution, is: to define and limit the laws.
I understand the OP and feel more or less like him: sometimes, the argument people use to defend a position is "because the founding fathers said so" when probably there are logical and strong arguments. It's just some people seem to be brainwashed to defend whatever those founding fathers said no matter what...
The Supreme Court has defined the meaning of "keep and bear arms", "well regulated militia" and "the right of the people" in an effort to clear up what people thought it meant and what it actually means. Its not as big of a grey area a people might think. Most of my fellow Americans read a few news articles or watch Glenn Beck on Fox and think they know everything. Few people examine the laws or constitution to completely understand them.
But once you examine the purpose of the Second amendment, you see these main points
deterrence tyrannical government;
repelling invasion;suppress insurrections;
facilitate self-defense;
participation in law enforcement;
enabling the organization of a militia.
These are all things a free people should be able to do. The second amendment, as defined by the US Supreme Court, guarantees this.
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This thread springs off the debate Here surrounding the 2nd amendment.
Every time I hear Americans arguing about the law, the major focus is on weather the law is constitutional. This I get. I understand that a system of laws needs a fundamental basis in order to function properly and avoid rule by fiat fro the highest courts and lawmakers. This makes sense.
What I don't get is the folks who always fall back on the "intent of the founding fathers". They treat the document like changing it, perhaps altering a position within it, would be sinful and awful.
Point of clarification: what would be problematic is to allow a law to violate the Constitution without changing it.
There's an amendment process to change the Constitution, and it requires a heavy burden to meet. This is to ensure that the law of the land can't be changed at the mere whim of the legislature, but rather, only with an overwhelming consensus among the people. It is a safeguard.
The document was written by a bunch of old white men over 200 years ago.
They were old: therefore they're wrong?
They were white: therefore they're wrong?
They lived 200+ years ago: therefore they're wrong?
None of that follows. It is likewise wrong to assume they must have been right, and, as history reveals, they were not right about everything (according to our current citizenry.)
However, their viewpoint is merely given the benefit of the doubt, as it established a long-lasting republic which guaranteed numerous rights to the people and has prevailed throughout the centuries.
It can be changed and indeed, will be again, but the goal is to not do so with haste and on a whim.
Who cares what their intent was? The important point is that the document makes sense for today.
Some among us believe that certain principles are eternal, not changing day by day.
If the phrasing of the amendment is problematic, why not change it? Why not define it, limit it, etc...?
Because there is not a wide consensus as to any re-phrasing of the amendment.
It doesn't make any sense to be sales to the intent of men dead for hundreds of years. the founding father were great men, yes, responsible for the founding of the most influential nation in modern history, but they were just MEN, not Gods, not Superheros.
Why do Americans care so much what the intent of the framers was, to the extent that it overrides reason and even common sense for many?
What I get from this is that you may think the 2nd amendment is not sensible. Some of us disagree.
I think a number of responses here are demonstrating the exact problem the original post is talking about. You can argue good reasons for something like the second amendment, but one of the first things some people go to immediately defer to the wisdom of the Founding Fathers, as if the fact that they said it should add weight to the argument.
There are a few reasons I think this founder worship. Most importantly, it really is important legal fact that the Constitution is the ultimate authority on our laws. A huge part of what the Supreme Court does is to interpret the Constitution and figure out what was intended.
The other aspect is the mythology that has surrounded the founders. They really are portrayed as near deific purveyors of truth and righteousness. They are presented as having a unified, grand plan for the United States, and that they were so brilliant that we should defer to the superior wisdom of a more enlightened era.
If the phrasing of the amendment is problematic, why not change it?
Well, CHANGING it IS somebody's "interpretation".
Are you getting it yet?
Everything we do in a civilized society is determined by the RULESof the GAME. It's a zero sum game, bitterly battled by hundreds of millions of players, all with different goals and agendas.
In an adversarial world, where the interpretaiton of the EXACT RULES of the GAME determines WINNERS and LOSERS.
Who LIVES and who DIES sometimes.
Why not define it, limit it, etc...? It doesn't make any sense to be sales to the intent of men dead for hundreds of years.
the reason "the original intent" comes into play so much is that that it is the only interpretaion that might have some universality.
Discussing "what's reasonable" is so widely disagreed upon, as to be just making up whatever we like (and all disagree).
There's a huge amount of misunderstanding surrounding the second amendment by both supporters and detractors of it. Here's the rundown: the second amendment was originally framed based in no small part on the military doctrine of the colonies and United States in the 18th and early 19th century.
At the time, the US did not have a professional military, but that could be raised by rallying state militias that were largely under the control of the governors (a continuation of the feudal state military model). Essentially states could wage war on their own, and did (see the Mexican/American War). In order to protect the populace from Indian raids (It wasn't a big threat, but it existed) you needed firearms (a lot of it was also about control, specifically how much a government would have over the states). It wasn't until after the Civil War, a confusing topic even before you get Confederate apologists saying "NOT SLAVERY!" and Yankee apologists going "NEENER NEENER!" that the power of the governors was drastically limited, in no small part because the state militias were broken down and consolidated into a professional military and police.
Any sort of reading into the second amendment is going to end up as an interpretation of it that's different from the original. It takes more than a gun to gain posse comitatus ("the power of the county") and arrest ne'er do wells, or to become a member of the national guard or police. The circumstances surrounding the amendment were warped beyond recognition by the Civil War and the emergence of the professional military.
Ultimately any interpretation of the constitution based on original intent is prone to one significant hurdle that renders the intellectual exercise almost futile - the founders were a diverse group of people who disagreed with each other often and sometimes violently. "Original intent" is all well and dandy until you realize that the US constitution was written by a divergent group of lawyers, and if you don't like what one of them says (many modern conservatives have an especially loathing for Madison) you can simply pick and choose until you get the original intent you want.
It shouldn't be changed on a whim, but it's not like the founding fathers were immeasurably wise. We've made a number of modifications to the document over the years with the intent of improving our situation. Appeals to the wisdom of the founding fathers are appeals to authority that are all alternatively legitimate and not for the purpose of stopping proposed changes.
It shouldn't be changed on a whim, but it's not like the founding fathers were immeasurably wise. We've made a number of modifications to the document over the years with the intent of improving our situation. Appeals to the wisdom of the founding fathers are appeals to authority that are all alternatively legitimate and not for the purpose of stopping proposed changes.
allow me to illustrate why "the intent of the founding fathers" is so important.
Theoretical:
(1) Let's say our constitution reads: "all literate adults have the right to vote" and was written 200 years ago.
(2) it's now 2012, and there are have been a lot of immigrants entering the country for the last couple of decades, and now there's 10 million naturalized citizens who are competent and somewhat mediocre English skills.
(3) a republican comes up and says "Hey! The constitution says you have to be 'literate' to vote!" challenging their right to vote. He demands that states administer literacy tests to all voters.
(4) Democrats and Republicans will now fight tooth and nail over what kind of literacy test constitutes "real literacy", and SCOTUS is also left to figure out what constitutes "literate". Because depending on how that constitution is interpreted, up to 10 million voters can be disenfranchised! Or unfrairly allowed to vote, depending on your POV.
Note that:
(a) if SCOTUS Makes determinations based on trying to guess the inten of the framers of the constitution, then SCOTUS can at least attempt to be objective.
(b) if SCOTUS is allowed to decide what would be a "fair" modern interpretation of the word "literate", then you are basically allowing SCOTUS to WRITE the law!
The problem with original intent is that there wasn't one guy doing the writing of the constitution. There were multiple guys, and some of them hated each other enough to kill each other over it (Burr).
Original intent is a nice idea, and every single time it can come up with a good answer for a question. But I can also pull an original intent argument that contradicts yours just by choosing another author of the constitution who had a different intent. Plenty of the founders were lawyers and they argued at great length over what was meant by what they had written.
If there is a confusion within the law like you have argued, if it isn't cleared up by congress, yes, it goes to the SCOTUS. What you're arguing for is easy for the court to decide - it doesn't need to determine the standard of the test administered, but whether the test itself is legally appropriate. Legislators can hash out a new test if the old one got canned. That's the job of a legislature. As a constitutional guarantee, the test would be found legal even if it disenfranchised people who can't perform up to the standards that were used by the last test.
I find myself extremely skeptical of the original intent argument. Rather than support the original arguments for these positions on the issues in question, resorting to an appeal to authority (founded or not) too often is a result of the person agreeing with the preconceptions of the authority in question. I'm personally much more supportive of gun rights on the grounds of personal responsibility and individual freedom than an argument that boils down to "because X says so".
I have always found it strange that people think this way.
We should respect and uphold the Constitution because it is a correct set of basic principles on which to build a free society, not because of who wrote it.
In fact, the thing that makes the Founders interesting is precisely that they were able to come up with a good set of principles. So it's circular to place the Founders ahead of the principles. It's a sort of Euthyphro dilemma without the dilemma part -- the Founders were good at what they did because of the results; the results were not good merely because it was the Founders that brought them about.
So when examining the Constitution, we should not ask what the intent of the Founders was, but rather whether or not such-and-such a section or paragraph articulates a correct founding principle of a free society -- because that's the very process the Founders used to come up with it in the first place! If an argument can establish that, then we needn't reference the Founders; the principle will stand on its own. And if the only reason we can come up with for abiding by a particular principle is merely because someone-or-another said so, then said principle is probably not really an important principle after all.
Long evangelical tradition, and especially the last large generation in charge along with X went through a Great Awakening. This reinforces religious themes to be carried over into the public realm.
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Ambition must be made to counteract ambition.
Individualities may form communities, but it is institutions alone that can create a nation.
Nothing succeeds like the appearance of success.
Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.
So when examining the Constitution, we should not ask what the intent of the Founders was, but rather whether or not such-and-such a section or paragraph articulates a correct founding principle of a free society
I am kind of surprised no lawyer has talked here about this yet: I believe that the reason that SCOTUS worries about what the "founding fathers" intended, is based very soundly on the CORE PRINCIPLE of judicial precedent. There is a chain of judicial precedent going back to each previous finding ever made by SCOTUS, and then back to the Constitution. It is a core doctrine at the heart of our LAWS, and one needs to understand that the Bill of Rights and Constitution are LAW. It's the foremost LAW that supercedes & sets the framework of all the other laws, from murder all the way down to parking tickets.
Because of the chain of judicial precedent, the interpretations of previous rulings and the intent of the writers of the laws (including the original LAW, the constitution) must be maintained. Otherwise society is not operating under law, but by the feelings of SCOTUS. Allowing each new SCOTUS to ignore precedent in favor of social reform, is giving SCOTUS the power of congress. This is a theme repeatedly referenced by SCOTUS over the years. As much as SCOTUS may want to reform the constitution, thats why the courts so often comment (sometimes in the majority opinion, sometimes even in the minority opinion) that Congress's job to make law and Congress's job to change the constitution if it needs changing.
This discussion actually has opened my eyes because I had never really thought about it hard before, and didn't realize why the "founding fathers' intent" was always brought into play. It is based on hard legal principle and the intrinsic necessity of consistency in ruling.
I think the area of where there is wiggle room and variance between justices is where SCOTUS discusses things that the writers of law "could not have foreseen" (which is often), by obviously all the judges went to law school and all understand that judicial precedent is critical for internal consistency, public confidence, "justice", and fairness.
Now regarding the 2nd amendment: IF the 2nd amendment is somehow failing because of modern changes in technology or society that the founding fathers could not have foreseen, then it is Congress's job to change it, and the President's job to sign off on it. It's not SCOTUS's job or right to do that. They are the refs.
But Ultimately, SCOTUS is bound by judicial precedent, and we if we let interpretation drift and drift, their power blurs over into the power that Congress is supposed to have.
And politically speaking, Because interpretation A of any rule favors one group's interests, while interpretation B of any rule favors another group, there is never going to be an impartial party when it comes to interpretation. So it's critical that The judicial branch of government have a sound framework in which to operate. They are the "referee" wing of the government, and one of the critical pieces of the balance of powers. Of course if SCOTUS rules against your "side", you're going to accuse SCOTUS of any number of bad things, and that's all open to interpretation... And there is tremendous wiggle room since there are loopholes in wording and missing wording and yes, unforeseen changes (since the constitution and the big legislative barrier to amending it is in and of itself a check/balance in govt), but ultimately if it's super critical to society to amend the constitution, it will get done. This kind of road block to reform from all these checks and balances may frustrate many, but it's also what keep us in check as a society. It may not be perfect but I believe it's better than any other system yet.
Obama wants to be dictator for life so promises corps et priviledge for shaping congress et.
Congress passes a law (against the constitution) saying presidental terms are for life, or usually as coups go "for the duration of the current crisis"
Supreme court doesn't challenge the law based on huge popularity of Obama rather than the framer's intent. Obama uses the military per presidential order to disband the court and then usually congress.
Voila instant dictatorship.
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Obama wants to be dictator for life so promises corps et priviledge for shaping congress et.
Congress passes a law (against the constitution) saying presidental terms are for life, or usually as coups go "for the duration of the current crisis"
Supreme court doesn't challenge the law based on huge popularity of Obama rather than the framer's intent. Obama uses the military per presidential order to disband the court and then usually congress.
Voila instant dictatorship.
That doesn't sound anything like an example of "court abuse". In your scenario, the bad guy is Obama, and then the evil congress lining up behind him. Congress wouldn't even need to "go against the Constitution". Obama could just have them pass a constitutional amendment in your fantasy scenario. It's not up to SCOTUS to "challenge" Obama; and in your. Scenario, theyre "scared" of Obama because he's so "popular". How is that "court abuse"? Then Obama disbands them illegally.
Other than creating an opportunity to take a cheap shot at Obama and presenting one of those paranoid middle America racist militia worst case scenarios, why would you try to label this a "court abuse"?
It's such a ridiculous nightmare scenario too, a congress backed power grab from a president that, let's not kid ourselves here, as a BLACK man, is a huge target of racist paranoia (case in point) and will never enjoy even an 80% approval rating if he cures cancer? What is it about Obama that scares some on the right? Seriously, we have dumbasses who swore an oath to the US and in the military and publicly stating they'd not follow Obama's orders... like Obama is one of the more likely presidents in history to Issue an "illegal order"? Puh-leez.
Obama's biggest failing is he seems to be in over his head, and he seems to lack leadership and a sense of direction. Plus he's barely got a 50% approval rating and he's positively hated by the right. "Dictator" Obama would not be able to leave the whitehouse except in an armored bulletproof vehicle.
But whatever.
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A more realistic "court abuse" would be if a Supreme court that had a composition that was mostly appointed by one political party, were to back up a particular interpretation of a law (that would favor one party or the other to win a general election - E.g. Supporting of denying the legality of certain voter ID laws - stricter ID laws would favor Republicans, looser would favor Democrats, and might affect turnout by hundreds of thousands or even millions).
I think fortunately, for the most part our supreme courts have been mostly people who vote very earnestly... And no entirely to support the political agenda of a party.
Meanwhile your beloved Republican candidates are dismissing free speech, sexual privacy and gay rights because its not in said constitution. If Obama would respond by getting that in, then you´d still call it ´court abuse´ right?
Are you really so insecure politically that you have to respond to an obviously hypothetical example containing Obama by lashing out at the other side?
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Yeah, I do. Someone has to start screaming when people shoot you in the back.
If only for the fact that its a ridiculous statement. Laws like that would immediately go back for civil recall and demote the entire government, and it would never even go to the stage where 'court abuse' would be in question. It was, as someone already posted here, a cheap shot at Obama and by no means a realistic example of court abuse.
Compare one's approach to dcartist's approach, has a tad more refinement to it and less venomous frivolity. Which carries the argument farther with specifics.
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Ambition must be made to counteract ambition.
Individualities may form communities, but it is institutions alone that can create a nation.
Nothing succeeds like the appearance of success.
Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.
Meanwhile your beloved Republican candidates are dismissing free speech, sexual privacy and gay rights because its not in said constitution. If Obama would respond by getting that in, then you´d still call it ´court abuse´ right?
I would honestly argue that in terms of "free speech" Democrats in particular have been very good at getting "certain words" removed for the sake of political correctness. How often do you see the "n" word used by black people when talking about one another? Contrast that with a white person using the same word, and the uproar it causes.
As for "sexual privacy", I'm assuming you're pointing to the recent upsurge of support the Republicans and the Catholic Church have received from all over the country because of Obama's requirements. Let me say this once again: this is not about reproductive rights, and I'm sure many Catholics will agree (since I'm sure many use condoms and the like), but rather the federal government attempting to impose their will on religious institutions and other groups that have a long, long history of being affiliated with said institutions (such as Notre Dame and many Catholic-affiliated hospitals). As one rabbi put it: "This is like telling a kosher deli that they must sell ham and bacon sandwiches in order to treat everyone equally."
In terms of gay marriage....eh, the Republicans are dumbasses on this one.
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I would honestly argue that in terms of "free speech" Democrats in particular have been very good at getting "certain words" removed for the sake of political correctness. How often do you see the "n" word used by black people when talking about one another? Contrast that with a white person using the same word, and the uproar it causes.
Are you claiming that democrats convinced black people to get offended when a white person says the word ******. Or is that democrats recognize that black people get offended by the word ****** so out of respect democrats encourage white people to not say ******.
I am not saying that political correctness does not go to far. I think the phrase african american is more racist than black for example.
But i do not say offensive words out of respect not because i am going to get arrested. There are some fine lines. Is retarded an offensive word? It is to some people. Sarah Palin does not like the word retarded. Out of respect i would not use the word retarded around her. My commander group does not mind the word so i call a lot of decisions retarded at my friends house.
To describe the constitution as a reaction to british rule is false. The articles of confederation was the founders first response to british rule. The articles of confederation where the limited federal government and strong states rights that a lot of conservatives claim that the founders wanted. In fact that form of government is what failed. 13 independent states with limited federal power was a failure in the eyes of the founding fathers. The continental congress was created to address the failure of limited federal government. For example under the articles of confederation the federal government could not raises taxes. I bet most "conservatives" would love it if the the federal government was not allowed to raise money through taxation. The founding fathers saw this as a failure in the articles of confederation.
The constitution was created by the founders to solve the problems created when the federal government is not the true authority. The constitution was the reaction to all the failures of limited federal power and high individual state power.
The constitution violated the founding american document (articles of confederation) by refusing to get all of the 13 states to ratify the constitution. So the very creation of our founding document was illegal. Only 9 states agreed to the constitution. Legally all 13 states should have ratified the constitution
If you are not going to mention why and how the constitution exist in a honest way then you will never understand the intent of the founding fathers.
If we where to take the true lesson of the continental congress it would be "if the current social structure is actual broken fix it by reasonable means."
This includes sidestepping current law in order to fix the society. I have never heard a pundit left or right actual talk about how we got the constitution. The founding fathers determined that limited federal government was a failure.
This does not mean that the federal government should get all the power and the states are left with nothing. The 10th amendment proves that the states should have power, but the states should also always be weaker than the federal government in the eyes of the founding fathers.
The articles of confederation where the limited federal government and strong states rights that a lot of conservatives claim that the founders wanted. In fact that form of government is what failed.
not really. the reason that the articles of confederation failed was because it lacked the power to really do anything. if one state decided to opt out of something even though it was important for them not to there was nothing that could be done.
If money needed to be raised then it was up to the states to if they would pay. the congress couldn't force them.
The constitution violated the founding american document (articles of confederation) by refusing to get all of the 13 states to ratify the constitution. So the very creation of our founding document was illegal. Only 9 states agreed to the constitution. Legally all 13 states should have ratified the constitution
Not really because the constitution was a replacement of the articles of confederation not an addition to. it was a new set of standards. all that was required was a super majority vote which 9/13 is a super majority vote.
The founding fathers determined that limited federal government was a failure.
not really. as stated before the articles of conderation didn't give the continential congress any teeth. the constitution gave them some teeth, and cleared up a lot of issues with the articles of confederation.
the federal government was still only suppose to be more of an oversite committee on the states while they acted on their own submission.
that is why there are only about 3 or 4 amendments that tell the federal government what it can do, and the rest tell it what it can't do.
They knew the dangers of consolidated power in the federal government hence why they setup a bunch of checks and balances in order to prevent that from happening.
over the years though bad court rulings and political agenda's have concentrated more and more power to the federal government.
states use to be functional on their own. now they almost depend on the federal government to meet their needs.
the federal government's design was to handle national disputes and provide overall guidence. nothing more. it has gotten way to big for it's *****es and needs to be scaled back majorly and power returned back to the states the way the constiution was designed.
The 10th amendment proves that the states should have power, but the states should also always be weaker than the federal government in the eyes of the founding fathers.
not really. the reason that the articles of confederation failed was because it lacked the power to really do anything. if one state decided to opt out of something even though it was important for them not to there was nothing that could be done.
If money needed to be raised then it was up to the states to if they would pay. the congress couldn't force them.
Correct me if I am wrong, but is Mystery45 saying that algebra is wrong and right in the same response?
Not really because the constitution was a replacement of the articles of confederation not an addition to. it was a new set of standards. all that was required was a super majority vote which 9/13 is a super majority vote.
Where was the requirement that it needed a super majority to come from then? How about this, we go about fixing the US Constitution by just throwing it out and using a simple majority of the states instead, according to you, this should be fine right? A super majority is just as arbitrary a decision as a simple majority.
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Every time I hear Americans arguing about the law, the major focus is on weather the law is constitutional. This I get. I understand that a system of laws needs a fundamental basis in order to function properly and avoid rule by fiat fro the highest courts and lawmakers. This makes sense.
What I don't get is the folks who always fall back on the "intent of the founding fathers". They treat the document like changing it, perhaps altering a position within it, would be sinful and awful. The document was written by a bunch of old white men over 200 years ago. Who cares what their intent was? The important point is that the document makes sense for today.
Specifically with regards to the second amendment, I often see statements like this, form the other thread:
If the phrasing of the amendment is problematic, why not change it? Why not define it, limit it, etc...? It doesn't make any sense to be sales to the intent of men dead for hundreds of years. the founding father were great men, yes, responsible for the founding of the most influential nation in modern history, but they were just MEN, not Gods, not Superheros.
Why do Americans care so much what the intent of the framers was, to the extent that it overrides reason and even common sense for many?
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1 it si a matter of trasdiotin and nation al pride I am proud of teh fact that my cultural ancestors were th forerunners for the perriod of history that saw the most social upheavlas and revoltuitons. most amerricals try to beleive that the spirit of america, while true it may need to be evovledto modern, life still shoud be rooted in the tradtions asnd phiposphies that gave birth toit.
2 it is also imprtant to remeber thast while the ammendments are part of the consttion, they arte the original writers answer to you r percweived problem of the orig. documnet needing to grow with the new nation. it is the bill of rigths and its utter simpliicuyt at establidhing the basis of western thougt as far as rigths are concerned that is directly responcible for the rise of america as such an influential and powerful nation. evene parts of it that are debatelby less important to modern civilation as the were there should not be reoved with out careful consideration. for exampl lthe second amendment. the right for an individual; citizne to bear arm may have no bearing ton thelikely hood of the gov. being or not beig able to supress a rebellion, or on a family being avbl;e to defends there home , (assuming the police are good enough to do that job, which they usuallly are)
but uit is a good reader for how trustworthy the gov or peoplare . the minute the gov. thinks they cant reust the general population with guns to teh point that they want to curtail what were originally intented to be imutable right , the same minute that gov. becomes untrustworthy to be a gov. IMO.
the same is true for alot of teh otehr rights tjhat some maty semieffective argue are not as relevnet to modern life. it si not that I need to ow agun or any thing else.the rigth we are afforded formour gov. is a two way trust contract. they trust uis with guns( for example ) and because of that we trust them with control.
3 the ideals put forth in the constitution were largely a product of the christian worldview dominant among the founding fathers . therefore alot of modern christian americans view this philosphy as the basis of their thinking of america as a christian natin and tehr fore view arguments against thephilosphies and perinciples in teh constitution as attack on thier faith despite it not being a holy text
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The reason the "intent of the founding fathers" is so critical, is the fact that conflict and disagreement are a zero sum game, and we all need to be playing by the same rules.
The intent is important as it directs how things are to be upheld. they didn't want a changing docuement that could be altered to ones whim which avoids major corruption hence why it is almost impossible to change.
there are thousands of amendments to the constitution every year and they all fail.
they usually never make it out of committee.
It isn't problematic except for those that want to control the freedoms of others.
The 2nd amendment was for several reasons.
1. that an armed public is a safer public
2. that an armed public is harder to control power wise.
3. That if anything would happen that the US would be invaded that the normal citizen could take up arms to fight and defend their country.
it was also put in place to protect themselves from an out of control government as well.
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You don't think why the people who wrote the document wrote it in the first place is important when attempting to interpret a document?
That's exactly what the purpose of the Supreme Court, the governing body whose job it is to interpret the Constitution, is: to define and limit the laws.
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I think he's saying that the level to which we care about the Founding Fathers' intentions violate reason and common sense. Not that their reasons do.
But once you examine the purpose of the Second amendment, you see these main points
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Point of clarification: what would be problematic is to allow a law to violate the Constitution without changing it.
There's an amendment process to change the Constitution, and it requires a heavy burden to meet. This is to ensure that the law of the land can't be changed at the mere whim of the legislature, but rather, only with an overwhelming consensus among the people. It is a safeguard.
They were old: therefore they're wrong?
They were white: therefore they're wrong?
They lived 200+ years ago: therefore they're wrong?
None of that follows. It is likewise wrong to assume they must have been right, and, as history reveals, they were not right about everything (according to our current citizenry.)
However, their viewpoint is merely given the benefit of the doubt, as it established a long-lasting republic which guaranteed numerous rights to the people and has prevailed throughout the centuries.
It can be changed and indeed, will be again, but the goal is to not do so with haste and on a whim.
Some among us believe that certain principles are eternal, not changing day by day.
Because there is not a wide consensus as to any re-phrasing of the amendment.
What I get from this is that you may think the 2nd amendment is not sensible. Some of us disagree.
There are a few reasons I think this founder worship. Most importantly, it really is important legal fact that the Constitution is the ultimate authority on our laws. A huge part of what the Supreme Court does is to interpret the Constitution and figure out what was intended.
The other aspect is the mythology that has surrounded the founders. They really are portrayed as near deific purveyors of truth and righteousness. They are presented as having a unified, grand plan for the United States, and that they were so brilliant that we should defer to the superior wisdom of a more enlightened era.
Are you getting it yet?
Everything we do in a civilized society is determined by the RULESof the GAME. It's a zero sum game, bitterly battled by hundreds of millions of players, all with different goals and agendas.
In an adversarial world, where the interpretaiton of the EXACT RULES of the GAME determines WINNERS and LOSERS.
Who LIVES and who DIES sometimes.
the reason "the original intent" comes into play so much is that that it is the only interpretaion that might have some universality.
Discussing "what's reasonable" is so widely disagreed upon, as to be just making up whatever we like (and all disagree).
At the time, the US did not have a professional military, but that could be raised by rallying state militias that were largely under the control of the governors (a continuation of the feudal state military model). Essentially states could wage war on their own, and did (see the Mexican/American War). In order to protect the populace from Indian raids (It wasn't a big threat, but it existed) you needed firearms (a lot of it was also about control, specifically how much a government would have over the states). It wasn't until after the Civil War, a confusing topic even before you get Confederate apologists saying "NOT SLAVERY!" and Yankee apologists going "NEENER NEENER!" that the power of the governors was drastically limited, in no small part because the state militias were broken down and consolidated into a professional military and police.
Any sort of reading into the second amendment is going to end up as an interpretation of it that's different from the original. It takes more than a gun to gain posse comitatus ("the power of the county") and arrest ne'er do wells, or to become a member of the national guard or police. The circumstances surrounding the amendment were warped beyond recognition by the Civil War and the emergence of the professional military.
Ultimately any interpretation of the constitution based on original intent is prone to one significant hurdle that renders the intellectual exercise almost futile - the founders were a diverse group of people who disagreed with each other often and sometimes violently. "Original intent" is all well and dandy until you realize that the US constitution was written by a divergent group of lawyers, and if you don't like what one of them says (many modern conservatives have an especially loathing for Madison) you can simply pick and choose until you get the original intent you want.
It shouldn't be changed on a whim, but it's not like the founding fathers were immeasurably wise. We've made a number of modifications to the document over the years with the intent of improving our situation. Appeals to the wisdom of the founding fathers are appeals to authority that are all alternatively legitimate and not for the purpose of stopping proposed changes.
Theoretical:
(1) Let's say our constitution reads: "all literate adults have the right to vote" and was written 200 years ago.
(2) it's now 2012, and there are have been a lot of immigrants entering the country for the last couple of decades, and now there's 10 million naturalized citizens who are competent and somewhat mediocre English skills.
(3) a republican comes up and says "Hey! The constitution says you have to be 'literate' to vote!" challenging their right to vote. He demands that states administer literacy tests to all voters.
(4) Democrats and Republicans will now fight tooth and nail over what kind of literacy test constitutes "real literacy", and SCOTUS is also left to figure out what constitutes "literate". Because depending on how that constitution is interpreted, up to 10 million voters can be disenfranchised! Or unfrairly allowed to vote, depending on your POV.
Note that:
(a) if SCOTUS Makes determinations based on trying to guess the inten of the framers of the constitution, then SCOTUS can at least attempt to be objective.
(b) if SCOTUS is allowed to decide what would be a "fair" modern interpretation of the word "literate", then you are basically allowing SCOTUS to WRITE the law!
Original intent is a nice idea, and every single time it can come up with a good answer for a question. But I can also pull an original intent argument that contradicts yours just by choosing another author of the constitution who had a different intent. Plenty of the founders were lawyers and they argued at great length over what was meant by what they had written.
If there is a confusion within the law like you have argued, if it isn't cleared up by congress, yes, it goes to the SCOTUS. What you're arguing for is easy for the court to decide - it doesn't need to determine the standard of the test administered, but whether the test itself is legally appropriate. Legislators can hash out a new test if the old one got canned. That's the job of a legislature. As a constitutional guarantee, the test would be found legal even if it disenfranchised people who can't perform up to the standards that were used by the last test.
I find myself extremely skeptical of the original intent argument. Rather than support the original arguments for these positions on the issues in question, resorting to an appeal to authority (founded or not) too often is a result of the person agreeing with the preconceptions of the authority in question. I'm personally much more supportive of gun rights on the grounds of personal responsibility and individual freedom than an argument that boils down to "because X says so".
We should respect and uphold the Constitution because it is a correct set of basic principles on which to build a free society, not because of who wrote it.
In fact, the thing that makes the Founders interesting is precisely that they were able to come up with a good set of principles. So it's circular to place the Founders ahead of the principles. It's a sort of Euthyphro dilemma without the dilemma part -- the Founders were good at what they did because of the results; the results were not good merely because it was the Founders that brought them about.
So when examining the Constitution, we should not ask what the intent of the Founders was, but rather whether or not such-and-such a section or paragraph articulates a correct founding principle of a free society -- because that's the very process the Founders used to come up with it in the first place! If an argument can establish that, then we needn't reference the Founders; the principle will stand on its own. And if the only reason we can come up with for abiding by a particular principle is merely because someone-or-another said so, then said principle is probably not really an important principle after all.
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Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.
Because of the chain of judicial precedent, the interpretations of previous rulings and the intent of the writers of the laws (including the original LAW, the constitution) must be maintained. Otherwise society is not operating under law, but by the feelings of SCOTUS. Allowing each new SCOTUS to ignore precedent in favor of social reform, is giving SCOTUS the power of congress. This is a theme repeatedly referenced by SCOTUS over the years. As much as SCOTUS may want to reform the constitution, thats why the courts so often comment (sometimes in the majority opinion, sometimes even in the minority opinion) that Congress's job to make law and Congress's job to change the constitution if it needs changing.
This discussion actually has opened my eyes because I had never really thought about it hard before, and didn't realize why the "founding fathers' intent" was always brought into play. It is based on hard legal principle and the intrinsic necessity of consistency in ruling.
I think the area of where there is wiggle room and variance between justices is where SCOTUS discusses things that the writers of law "could not have foreseen" (which is often), by obviously all the judges went to law school and all understand that judicial precedent is critical for internal consistency, public confidence, "justice", and fairness.
Now regarding the 2nd amendment: IF the 2nd amendment is somehow failing because of modern changes in technology or society that the founding fathers could not have foreseen, then it is Congress's job to change it, and the President's job to sign off on it. It's not SCOTUS's job or right to do that. They are the refs.
But Ultimately, SCOTUS is bound by judicial precedent, and we if we let interpretation drift and drift, their power blurs over into the power that Congress is supposed to have.
And politically speaking, Because interpretation A of any rule favors one group's interests, while interpretation B of any rule favors another group, there is never going to be an impartial party when it comes to interpretation. So it's critical that The judicial branch of government have a sound framework in which to operate. They are the "referee" wing of the government, and one of the critical pieces of the balance of powers. Of course if SCOTUS rules against your "side", you're going to accuse SCOTUS of any number of bad things, and that's all open to interpretation... And there is tremendous wiggle room since there are loopholes in wording and missing wording and yes, unforeseen changes (since the constitution and the big legislative barrier to amending it is in and of itself a check/balance in govt), but ultimately if it's super critical to society to amend the constitution, it will get done. This kind of road block to reform from all these checks and balances may frustrate many, but it's also what keep us in check as a society. It may not be perfect but I believe it's better than any other system yet.
Obama wants to be dictator for life so promises corps et priviledge for shaping congress et.
Congress passes a law (against the constitution) saying presidental terms are for life, or usually as coups go "for the duration of the current crisis"
Supreme court doesn't challenge the law based on huge popularity of Obama rather than the framer's intent. Obama uses the military per presidential order to disband the court and then usually congress.
Voila instant dictatorship.
Other than creating an opportunity to take a cheap shot at Obama and presenting one of those paranoid middle America racist militia worst case scenarios, why would you try to label this a "court abuse"?
It's such a ridiculous nightmare scenario too, a congress backed power grab from a president that, let's not kid ourselves here, as a BLACK man, is a huge target of racist paranoia (case in point) and will never enjoy even an 80% approval rating if he cures cancer? What is it about Obama that scares some on the right? Seriously, we have dumbasses who swore an oath to the US and in the military and publicly stating they'd not follow Obama's orders... like Obama is one of the more likely presidents in history to Issue an "illegal order"? Puh-leez.
Obama's biggest failing is he seems to be in over his head, and he seems to lack leadership and a sense of direction. Plus he's barely got a 50% approval rating and he's positively hated by the right. "Dictator" Obama would not be able to leave the whitehouse except in an armored bulletproof vehicle.
But whatever.
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A more realistic "court abuse" would be if a Supreme court that had a composition that was mostly appointed by one political party, were to back up a particular interpretation of a law (that would favor one party or the other to win a general election - E.g. Supporting of denying the legality of certain voter ID laws - stricter ID laws would favor Republicans, looser would favor Democrats, and might affect turnout by hundreds of thousands or even millions).
I think fortunately, for the most part our supreme courts have been mostly people who vote very earnestly... And no entirely to support the political agenda of a party.
Are you really so insecure politically that you have to respond to an obviously hypothetical example containing Obama by lashing out at the other side?
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Compare one's approach to dcartist's approach, has a tad more refinement to it and less venomous frivolity. Which carries the argument farther with specifics.
Ambition must be made to counteract ambition.
Individualities may form communities, but it is institutions alone that can create a nation.
Nothing succeeds like the appearance of success.
Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.
I would honestly argue that in terms of "free speech" Democrats in particular have been very good at getting "certain words" removed for the sake of political correctness. How often do you see the "n" word used by black people when talking about one another? Contrast that with a white person using the same word, and the uproar it causes.
As for "sexual privacy", I'm assuming you're pointing to the recent upsurge of support the Republicans and the Catholic Church have received from all over the country because of Obama's requirements. Let me say this once again: this is not about reproductive rights, and I'm sure many Catholics will agree (since I'm sure many use condoms and the like), but rather the federal government attempting to impose their will on religious institutions and other groups that have a long, long history of being affiliated with said institutions (such as Notre Dame and many Catholic-affiliated hospitals). As one rabbi put it: "This is like telling a kosher deli that they must sell ham and bacon sandwiches in order to treat everyone equally."
In terms of gay marriage....eh, the Republicans are dumbasses on this one.
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Are you claiming that democrats convinced black people to get offended when a white person says the word ******. Or is that democrats recognize that black people get offended by the word ****** so out of respect democrats encourage white people to not say ******.
I am not saying that political correctness does not go to far. I think the phrase african american is more racist than black for example.
But i do not say offensive words out of respect not because i am going to get arrested. There are some fine lines. Is retarded an offensive word? It is to some people. Sarah Palin does not like the word retarded. Out of respect i would not use the word retarded around her. My commander group does not mind the word so i call a lot of decisions retarded at my friends house.
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To describe the constitution as a reaction to british rule is false. The articles of confederation was the founders first response to british rule. The articles of confederation where the limited federal government and strong states rights that a lot of conservatives claim that the founders wanted. In fact that form of government is what failed. 13 independent states with limited federal power was a failure in the eyes of the founding fathers. The continental congress was created to address the failure of limited federal government. For example under the articles of confederation the federal government could not raises taxes. I bet most "conservatives" would love it if the the federal government was not allowed to raise money through taxation. The founding fathers saw this as a failure in the articles of confederation.
The constitution was created by the founders to solve the problems created when the federal government is not the true authority. The constitution was the reaction to all the failures of limited federal power and high individual state power.
The constitution violated the founding american document (articles of confederation) by refusing to get all of the 13 states to ratify the constitution. So the very creation of our founding document was illegal. Only 9 states agreed to the constitution. Legally all 13 states should have ratified the constitution
If you are not going to mention why and how the constitution exist in a honest way then you will never understand the intent of the founding fathers.
If we where to take the true lesson of the continental congress it would be "if the current social structure is actual broken fix it by reasonable means."
This includes sidestepping current law in order to fix the society. I have never heard a pundit left or right actual talk about how we got the constitution. The founding fathers determined that limited federal government was a failure.
This does not mean that the federal government should get all the power and the states are left with nothing. The 10th amendment proves that the states should have power, but the states should also always be weaker than the federal government in the eyes of the founding fathers.
not really. the reason that the articles of confederation failed was because it lacked the power to really do anything. if one state decided to opt out of something even though it was important for them not to there was nothing that could be done.
If money needed to be raised then it was up to the states to if they would pay. the congress couldn't force them.
Not really because the constitution was a replacement of the articles of confederation not an addition to. it was a new set of standards. all that was required was a super majority vote which 9/13 is a super majority vote.
not really. as stated before the articles of conderation didn't give the continential congress any teeth. the constitution gave them some teeth, and cleared up a lot of issues with the articles of confederation.
the federal government was still only suppose to be more of an oversite committee on the states while they acted on their own submission.
that is why there are only about 3 or 4 amendments that tell the federal government what it can do, and the rest tell it what it can't do.
They knew the dangers of consolidated power in the federal government hence why they setup a bunch of checks and balances in order to prevent that from happening.
over the years though bad court rulings and political agenda's have concentrated more and more power to the federal government.
states use to be functional on their own. now they almost depend on the federal government to meet their needs.
the federal government's design was to handle national disputes and provide overall guidence. nothing more. it has gotten way to big for it's *****es and needs to be scaled back majorly and power returned back to the states the way the constiution was designed.
it depends on the issue.
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Correct me if I am wrong, but is Mystery45 saying that algebra is wrong and right in the same response?
Where was the requirement that it needed a super majority to come from then? How about this, we go about fixing the US Constitution by just throwing it out and using a simple majority of the states instead, according to you, this should be fine right? A super majority is just as arbitrary a decision as a simple majority.