Yes. We should strictly follow both the letter and spirit of the original intent.
Yes. We should follow the original principles and then apply them as new issues arise.
Yes. The original intent of the Constition is important, but other factors must be considered.
No. The Constitution is a guiding set of principles that we can interrpret to fit our current needs.
"A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murder is less to fear"
Cicero Marcus Tullius
Let's try and get thsi back on track and discuss the concept of original intent and how much we should follow it and not focus on individual Constitutional issues.
For those of that are saying we need activist judges who re-interpret the Constitution in ways contrary to original intent, how do you propose we hold these justices and their rulings accountable. The Supreme Court is appointed and for life. The public has no direct say about who will be on the court and has no ability to hold the justices accountable once they join the court.
The reason for this was to keep the courts above the political fray and to let them focus on ruling according to the law and not what was politically popular. But when we have activist judges ignoring original intent, they are entering the fray and doing so with no political accountability. The result has been a steady undermining of the concept of a limited federal government as the founding fathers envisioned.
As I see it, activist judges undermine our entire legal system. Our system is based on precedent and the idea that the Constitution is the supreme law of the land. When the court ignores the intent of the Constitution, they create a ruling that is not founded on any legal precedent. And that sets a precedent that can be the foundation for rulings that are even further away from the original intent. And of course by setting a precedent that we can ignore the original intent, it sets a precedent that future justices can ignore the intent of the previous generation.
I really have a hard time understanding how folks can be supportive of judges legislating from the bench when they are not subject to the same checks and balances the hold the real legislative branch accountable. What you're essentially supporting is justices making arbitrary rulings based on their own political leanings and not based on legal precedent.
For those of you that argue activism is necessary, I have a few questions.
1. Are you not at all concerned about judges being able to ignore precedent, which is the foundation of our common law system?
2. Do you find nothing objectionably about judges using judicial fiat to legislate from the bench, usurping the role of the legislative branch and doing so without being subjected to the same checks and balances that hold the legislative branch accountable and in check?
3. How does one objectively determine what parts of the Constitution are universal and what parts are outdated?
4. If you believe activism is necessary because the amendemnt process is too cumbersome, wouldn't we be better off advocating a change in the amendment process rather than relying on judges are almost completely unaccountable for the decisions they make?
Slipping into madness is good for the sake of comparison - Unknown.
No response from our supporters of judicial activism? I was looking forward to hearing what their thoughts were.
Slipping into madness is good for the sake of comparison - Unknown.
Sure, but precedent isn't everything. Sometimes precedents become either morally abhorrent to the modern world (e.g. Brown v. Board of Education, overturning Plessy v. Ferguson), or they become unworkable from a practical standpoint (e.g. Scenic Hudson Preservation Conference v. Federal Power Commission, giving states legal standing on environmental issues). Furthermore, this system has worked for a couple hundred years now, and the courts don't often offer opinions that differ drastically from what people find acceptable.Originally Posted by Psychoclown
They are subject to checks and balances. They are appointed by the President, confirmed by the Senate, and can be removed from office by the Senate.Originally Posted by Psychoclown
There's no easy answer to that question. Most often it boils down to two questions: Is the precedent still workable from a practical standpoint, and does it approximately match the values of society. For example, in Article II of the Constitution the president is constantly referred to as "he." This is almost always interpreted in the modern, neutered sense...but the Founding Fathers may very well have meant "he" and not "she." Interpreting the Constitution in such a way would be a stark departure from the values of modern society.Originally Posted by Psychoclown
Sure, but any constitutional amendment to change the constitutional amendment process would still have to go through the constitutional amendment process.Originally Posted by Psychoclown
Furthermore, I think several key parts of the Constitution indicated that the Founding Fathers did not support an originalist interpretation anyway (or at least, there was no consensus among them on the subject). If they did, I'm hard-pressed to see any reason why they would've included phrases like "cruel and unusual punishment," "good behavior," "high crimes and misdemeanors," or the entirety of the Ninth Amendment. If they really wanted future generations to use THEIR standards, they would've spelled out what they were talking about.
Last edited by Kandahar; 10-21-09 at 02:22 AM.
Are you coming to bed?
I can't. This is important.
Someone is WRONG on the internet! -XKCD
Original intent is like telling your wife of 30 years you want to sneak into her bedroom widow and **** her brains out with her daddy in the house.
We were very young in the 18th century.
A question. How would we address the disparities in the intents of different Founding Fathers? Which intent do we go by and by virtue of what?
If you notice something good in yourself, give credit to God, not to yourself, but be certain the evil you commit is always your own and yours to acknowledge.
As to the use of the abovementioned phrases... if they are a bit vague that does not necessarily indicate that there was a lack of consensus of their meaning-- In my opinion, they intended for the best method of interpretation to be one of simple common sense. As an example, our judicial system includes trial by a jury of your peers-- if a trespass is committed and the question of whether or not cruel and unusual punishment has happened is brought before the jury, the idea is that they would be able to determine whether or not the punishment was or wasn't so based upon their own understanding of the language on a case by case basis, which is not overly complicated. Any overly specific definition set in stone would prove to be inadequate or fraught with loopholes in every case over time. I believe the language is as specific as it needs to be for a person of ordinary intelligence (and no corrupting political agenda) to comprehend its meaning.
I voted that we should follow the intent rather than the letter. The primary reason being that there are simply whole spheres of issues that have emerged since the constitution was written that there was no way they could have specifically mentioned. The framers were very smart guys who had some great ideas, but they were not psychic. They couldn't have anticipated changes in technology and whatnot that have major implications for the issues they were concerned with.
For example, there is no right to privacy in the constitution, but they did include prohibitions on search and siezure. The intent there is to protect our privacy. At the time, if somebody couldn't search you physically or search your home physically, that was it, your privacy was intact. There were no emails, telephones, listening devices, etc. If there had been, they would have extended the limitations on search and siezure to those things, so we should apply it that way.
Most of the rights in the constitution are actually broader when we look at intent instead of the letter of the law because they can then be extended to apply to comprable modern situations that didn't exist in the framers' time. Generally speaking, the strict constructionist judge will more often be on the side of a limited interpretation of our constituational rights.