View Poll Results: Does the original intent still matter when discussing the Constitution?

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  • Yes. We should strictly follow both the letter and spirit of the original intent.

    28 35.90%
  • Yes. We should follow the original principles and then apply them as new issues arise.

    21 26.92%
  • Yes. The original intent of the Constition is important, but other factors must be considered.

    15 19.23%
  • No. The Constitution is a guiding set of principles that we can interrpret to fit our current needs.

    10 12.82%
  • Other

    4 5.13%
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Thread: The Constitution: Does Original Intent Still Matter?

  1. #171
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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by teamosil View Post
    Generally speaking, the strict constructionist judge will more often be on the side of a limited interpretation of our constituational rights.

    No, usually it's the other way around...the constitution grants all legitimate powers to the federal government, not rights to individuals. Strict constructionists keep critical pressure upon the federal government to keep it from expanding and keep peoples' rights intact-- loose interpreters find justifications and loopholes that allow for irreversible government expansion and even make the specifically listed rigths to be protected carry less weight.

    Those who favor loose interpretation often do so to lessen the protection of an individual's rights, while at the same time they broadly interpret the limited powers granted to the federal government at the expense of the individual and the states. The whole point of the constitution was to specifically grant powers to the federal government and otherwise limit it--if it is interpreted broadly then the constitution is made practically impotent, as is any contract that is not considered within the bounds of the original intent to which it was created and agreed upon. The people's check on the growth of central power is threatened by loose interpretation of the constitution.
    Last edited by other; 10-21-09 at 04:07 PM.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by other View Post
    No, usually it's the other way around...the constitution grants all legitimate powers to the federal government, not rights to individuals.
    Part of the constitution deals with stating what government is allowed to do, part of it deals with individual rights to be free from government interference. So, yes, in theory an ultra strict constuctionist may argue that all sorts of government functions today are not expressly authorized in the constitution and therefore are unconstitutional. If you believe that big government is the opposite of freedom, then your position makes sense on that front. But, that's really just an academic argument. In actuality no judge is going to shut down DHS because it wasn't expressly outlined in the constitution or something. In practice in courtrooms what comes into play is the individual rights of the defendant. If somebody interprets those by the letter of the law, as strict constructionists tend to do, then they're interpreting those rights narrowly.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by teamosil View Post
    Part of the constitution deals with stating what government is allowed to do, part of it deals with individual rights to be free from government interference. So, yes, in theory an ultra strict constuctionist may argue that all sorts of government functions today are not expressly authorized in the constitution and therefore are unconstitutional. If you believe that big government is the opposite of freedom, then your position makes sense on that front. But, that's really just an academic argument. In actuality no judge is going to shut down DHS because it wasn't expressly outlined in the constitution or something. In practice in courtrooms what comes into play is the individual rights of the defendant. If somebody interprets those by the letter of the law, as strict constructionists tend to do, then they're interpreting those rights narrowly.
    I see what you are saying, but again, I have to disagree based on what has actually happened--not to open a can 'o' worms, but look at the 2nd amendment... There are those who follow it to the letter, saying that there should be no infringement of the right to bear arms... then there are those who would try to use some amorphous living & breathing interpretation, saying that the 2nd only counts for this or that, or may be infringed here but not there, etc etc. The Strict Constructionists are the ones trying to protect the right in this case, while the others are trying to pass legislation to encroach upon that right.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by other View Post
    I see what you are saying, but again, I have to disagree based on what has actually happened--not to open a can 'o' worms, but look at the 2nd amendment... There are those who follow it to the letter, saying that there should be no infringement of the right to bear arms... then there are those who would try to use some amorphous living & breathing interpretation, saying that the 2nd only counts for this or that, or may be infringed here but not there, etc etc. The Strict Constructionists are the ones trying to protect the right in this case, while the others are trying to pass legislation to encroach upon that right.
    Yeah that's true. The second amendment is broader with a strict constructionist reading than with somebody that looks at the intent. Even for those that look at the intent it's unclear what that means. Some people argue that their intent was just for militias, which some people argue are now the national guard. Other people argue that the intent was to enable the citizens to have enough military might that they can overthrow the government. But if we really go with a policy of no infringement whatsoever, or the goal of enabling citizens to overthrow the government, in the modern world that leads to some insanity... Like, nobody would argue that just anybody should be able to get a nuclear bomb without a permit, waiting period, background check, trigger locking requirements or registration... But that's technically what 'no infringement' would mean... So I'm not really sure what to do with that one. I don't have a clear legal idea of how best to interpret the limits of that one. If you have a read that makes sense, but doesn't mean we need to let terrorists be able to pick up surface to air missles at the 7-11, I'd definitely be interested.

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    Re: The Constitution: Does Original Intent Still Matter?

    The fundamental basis of individual liberty does not lay in the details of the government's structure, or that it is a Republic or that it is "democratic".

    The single most important issue involved, and something the founders understood well, is that government must be Limited.

    Unlimited government is one that has no upper limit to its power. Pure democracy without limits to power can be as oppressive as any dictatorship. The only constraints an unlimited democracy has on its rise to oppressiveness is how fast the powerbrokers can get the people to move toward totalitarianism without wising up to what's going on.

    The Constitution was intended as the chief limiter of governmental power, or at least the document defining its limitations. The system of checks and balances were supposed to use the Constitution as their justification for blocking efforts to expand Federal power beyond those limits.

    If you turn the Constitution into an amorphous blob that can be reinterpreted every time the wind changes direction, then you're (knowing or unknowing) advocating a government with no hard limitations.

    Without solid limits on gov't power, you will eventually have a totalitarian state. This is why the Constitution must be taken seriously... because ideas have power, and the idea of the Constitution is ultimately what stands between individual liberty and the will to power of the elites and demogogues.

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    Re: The Constitution: Does Original Intent Still Matter?

    That would incorrectly imply some democratic or libertarian quality of the Constitution itself, though, when it contains numerous elements directly contrary to the maximization of such qualities.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by teamosil View Post
    Yeah that's true. The second amendment is broader with a strict constructionist reading than with somebody that looks at the intent. Even for those that look at the intent it's unclear what that means. Some people argue that their intent was just for militias, which some people argue are now the national guard. Other people argue that the intent was to enable the citizens to have enough military might that they can overthrow the government. But if we really go with a policy of no infringement whatsoever, or the goal of enabling citizens to overthrow the government, in the modern world that leads to some insanity... Like, nobody would argue that just anybody should be able to get a nuclear bomb without a permit, waiting period, background check, trigger locking requirements or registration... But that's technically what 'no infringement' would mean... So I'm not really sure what to do with that one. I don't have a clear legal idea of how best to interpret the limits of that one. If you have a read that makes sense, but doesn't mean we need to let terrorists be able to pick up surface to air missles at the 7-11, I'd definitely be interested.
    Personally, I see a common sense distinction between "arms" and "ordnance." The former being typical firearms and the latter being those weapons specifically military in nature such as artillery or modern bombs--yes including nukes. Under scrutiny of original intent, I don't know of any civilians in the late 1700s or early 1800s who sprung for cannon.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by Agnapostate View Post
    That would incorrectly imply some democratic or libertarian quality of the Constitution itself, though, when it contains numerous elements directly contrary to the maximization of such qualities.
    The intent was not the maximization of such qualities, but to allow for what they determined was the proper amount of limited authority on the government. The maximization of such qualities creates an ineffective government.

    Prior to the constitution the articles of confederation more closely set out to maximaze libertarian ideals--so much so that the federal government was determined to be completely ineffective and they had to be scrapped.

    The purpose of the constitution is to clearly define a limited set of powers allowed of the federal government--excluding all else to the states or the people, not to maximize any ideal notions.
    Last edited by other; 10-21-09 at 10:51 PM.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by other View Post
    The intent was not the maximization of such qualities, but to allow for what they determined was the proper amount of limited authority on the government. The maximization of such qualities creates an ineffective government.

    Prior to the constitution the articles of confederation more closely set out to maximaze libertarian ideals--so much so that the federal government was determined to be completely ineffective and they had to be scrapped.

    The purpose of the constitution is to clearly define a limited set of powers allowed of the federal government--excluding all else to the states or the people.
    I'm not interested in "effective" qualities if their effect is the reinforcement of limited democratic management through republicanism and checks on freedom through authoritarian mechanisms. I promote anarchism myself, as is well known, but the Constitution fails to meet even the criteria of most other Western liberal democracies.

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    Re: The Constitution: Does Original Intent Still Matter?

    Quote Originally Posted by Agnapostate View Post
    I'm not interested in "effective" qualities if their effect is the reinforcement of limited democratic management through republicanism and checks on freedom through authoritarian mechanisms. I promote anarchism myself, as is well known, but the Constitution fails to meet even the criteria of most other Western liberal democracies.
    What criteria, as though that matters?
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