Sorry for the late reply, but my video card decided it was better to fry alive than to stay alive for another moment on this earth. I decided to take the chance to upgrade my computer and take a few days off from the Internet as I badly needed both.
Legal precedent certainly does have a part in the courts...in fact, it is the cornerstone of our
judicial system.
Common law - rather than code law - has been the governing principle of American courts from the beginning, even predating the Constitution itself.
My point was really that it has proven itself to be an instrument to compound problems, instead of leading to better solutions. I feel its better to throw it out than continue a practice that is clearly not part of the solution.
As for "failing to read to get what you want"...if your interpretation of the Constitution was the only correct one, then the Supreme Court would be composed of nothing but "originalists" and there wouldn't be any legal debate over anything in the first place.
Hardly. The debate would be over what applied with the understanding of a foundation to begin with while everything else stayed the same.
I understand, and I'm not opposed to "exploring" these answers...but it would go a lot more quickly if you didn't misquote me. For example, you just responded to a paragraph where I explicitly said that the problem was NOT that it didn't allow such a system with "where does it not allow it?" It isn't a matter of allowing or not allowing an industrialized nation, it's a matter of the Constitution simply not being designed to accommodate the needs of an industrialized nation.
What needs are we talking about? What needs do the constitution not give out as it is written that are important for an industrialized nation?
Here are just a few reasons why an "originalist" interpretation of the US Constitution would not work for our modern society. This is by no means an exhaustive list, just what I could think of off the top of my head:
1. We have cars, airplanes, and an interstate highway system. It is relatively easy for people to pick up and move from one state to another, whereas when the Constitution was written most people lived their entire lives without traveling more than 30 miles from their home. This means that a system of assigning primary taxing/spending responsibilities to the states, rather than the federal government, would be far less effective now than it was in 1789. Not to mention that it greatly increases both the size and scope of interstate commerce.
Why would it be less effective? Doesn't seem like it would make much of a difference. What is covered by the commerce clause does not change because of inventions either.
2. The concept of environmentalism was almost totally unknown in 1789, aside from maybe a few minor issues like overfishing.
Seems like a state issue and I personally don't see much of a problem to begin with. If you want to help endangered species start a restaurant and serve the fish. This has worked in the past for such concerns.
The Founding Fathers certainly could not have envisioned massive air pollution from smokestacks, widespread electricity consumption, the economics of the oil trade, climate change, nuclear power plants, a hole in the ozone layer (or even the existence of an ozone layer), ocean trawling, etc. Regulating some of these activities cannot easily be done on a state level, because the environmental practices of one state can affect others.
Courts can handle this and I don't see why states can't handle disputes like they always have for this matter. Do we forget this happened before? While surely it needed reform, the powers given can handle this just fine.
It should however be noted that many of those would have never came into being if the states power didn't grow. For example, nuclear power..
3. When the Founding Fathers wrote the Constitution, most people identified with their state first and their nation second. Today, it is the opposite.
For many people it is not different and at all for many it is. Much like it ever was.
This is a profound cultural shift, that ingrains a "we're all in this together" mentality on most American citizens. This, of course, leads to comparisons of American policies with those of other nations (rather than between the states), and calls for a heavier federal role in things like health care and education. (You personally may or may not have this mentality, but that's irrelevant to the historical fact that this way of thinking is radically different from what it was in 1789).
People have always demanded more and more from government as it ages. When Jefferson said that the natural progression is for liberty to give way to government this is exactly what he was talking about. People not only demand more but the government demands more. This only naturally makes them more important as time passes. The country was formed in the hopes this pattern would be stopped and simply working around the blockades because they are effective does not in any way mean you are different than the people of the past. In fact, healthcare and education were run by many countries in their time and they simply rejected the idea. Well..Jefferson liked the idea of education, but he was in the minority and moved on with a college when he failed instead of simply doing what you are doing here and trying to wiggle around the bothersome truth of what is written and why it was written.
It's not a matter of "liking" it or not. It certainly was an historical achievement for its time, and I suppose it worked reasonably well in 1789 (aside from the whole slavery and gender discrimination thing). But it doesn't work well in 2012, at least if one adopts an "originalist" interpretation.
We didn't really fix the later, but took away rights to battle it. I wouldn't call that a victory or an expansion on the ideals put out. If anything it is missing the point completely.
The former we solved but by an illegal war that Justice Chase decided was legal by falsely claiming the introduction means that states can't succeed.
Umm YOU asked for elaboration on that point; I only brought it up in the first place as the only other example I could think of of people trying to strictly adhere to a nearly-unchangeable 100+ year old document, and applying all those situations to their modern circumstances.
Again, this "exploration" of answers to questions would probably go more efficiently...if you didn't ask a question and then say you didn't care about the answer.
Fair enough. Though I didn't reject your answer as much I found it inappropriate as religion changes based on what people believe. They just hide it is all.
It is supposed to be DIFFICULT to amend. It is not supposed to be virtually IMPOSSIBLE to amend. The fact that we've only had a single 7-year period in our entire nation's history in which important, non-coerced, modernizing constitutional amendments were passed, should indicate that the task is nearly impossible. Therefore, the only other solutions are preserving the document as is for all eternity and assuming that we figured out the perfect government for all-time in 1920...or allowing for more modern interpretations of the Constitution.
The only reason we haven't had more amendments is because people simply have ignored the use for them. I have little doubt there would many more amendments if people were forced to use the outlet. Would it still be almost impossible, yes, it would, but again that is point. It was a way to control the size of and power of government as they thought it was important to keep government within some kind of restraint that was very hard to escape. If it was easier to amend it simply would not live up to its reason for being there.
