Are you a Literal Constitutionalist?

cpwill said:

that is incorrect - blacks voted in several early states. but of course your public education never taught you that .

Click to expand...

My "limited" public school education tells me that in 1790, blacks represented 20% of the population in America and 92% were slaves. That translates into approximately 30 000 free blacks (men, women and children) throughout the nation. By 1860, 89% of America's blacks were still slaves.

http://en.wikipedia.org/wiki/African_American

Redress said:

BD, your article proves me right. Many people wrote the constitution, 3 wrote the federalist papers, and the main writer of the federalist papers disagreed with the bill of rights.

Click to expand...

You are correct, I got you two mixed up. Teach me to log on after being up all night.

OK Red, I think you are right on this.

Blackdog said:

You are correct, I got you two mixed up. Teach me to log on after being up all night.

OK Red, I think you are right on this.

Click to expand...

You doubted me. I am hurt.

Redress said:

You doubted me. I am hurt.

Click to expand...

I know, I should be flogged.

OhIsee.Then said:

When I read the complete but one sentence admendment "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." I'm reading the words "A well regulated Militia,...; and, in your comments there is no consideration of this. So what does the "A well regulated Militia, being necessary to the security of a free State, ..." part intend? Interesting how hard it is to interpret and agree on the the written word, with and without the understanding the intent of the architecture of the whole thing.

Click to expand...

Ah yes. The fallacious militia argument. The militia is one of many reasons to allow for an armed populace, it is a secondary thought independent of the main clause which states that the right shall not be infringed. In other words without the militia clause the amendment is still complete in it's context. Have a nice day.

whysoserious said:

No. First of all, I am not sure it is even possible to be a literal Constitutionalist - as anything written requires interpretation, and almost any text can be interpreted differently. Secondly, when interpreting writing, intent has to be taken into consideration, and anyone who is a strict Constitutionalist fails on that front.

Click to expand...

I am going to have to completely disagree with you here. I am assuming "literal constitutionalism" means you favor textualism when interpreting the constitution.

Of course different people can in fact interpret the ordinary meaning of the words in the constitution differently. Think about it, the constitution is a document that limits the powers of the government, therefore a person necessarily must invoke some form of political morality when interpreting the constitution. The correct interpretation of the Constitution requires us to interpret it morally. People have different morals, and therefore the words of the constitution will be interpreted differently based on ones political morality.

Also, interpreting the writing of the consitution does not require intent. In fact, intent is a non-textual source. If you use intent, you are no longer interpreting the constitution, you are attempting to interpret what the writers of the constitution thought they were writing and then trying to decide how you think they would have applied what they wrote to a concrete case. It entirely ignores what is actually written. Intent actually will rqeuire a stricter form of "interpretting" the constitution. You are bound by what the people who wrote the document thought. Remember the writers of the 14th amdendment. Did they think that would apply to cases like Brown v Board of ed.? Roe v wade? Textualism does not fall into the trap of "strict" consitutionalism as you suggest, in fact it is just the opposite, original intent does.

MidRighter, I don't know how many ways I can explain that the constitution doesn't actually function how you want it to. You can say you want it to work that way, but you really can't say that it does. You'd basically need to overturn the majority if supreme court decisions that deal with economics and trade. The "abuses" that you point out... that's just making laws. You may not agree with them, but if you take issue with that much of American policy, maybe you're in the wrong country.

LaMidRighter said:

Ah yes. The fallacious militia argument. The militia is one of many reasons to allow for an armed populace, it is a secondary thought independent of the main clause which states that the right shall not be infringed. In other words without the militia clause the amendment is still complete in it's context. Have a nice day.

Click to expand...

And yet the constitution makes other references to militias. It clearly expects these armed members of the populace to be organized that way. Each state is presumed to be keeping track of all of these folks with guns, and keeping them disciplined. Those people who fit the description of "gun nuts" are completely outside of what the constitution envisions. That's why the well regulated militia part is in there, to keep those people well regulated. That's why the right to keep guns is protected. Point out any other part of the constitution that is just poetic and doesn't mean anything. Go ahead.

LaMidRighter said:

Ah yes. The fallacious militia argument. The militia is one of many reasons to allow for an armed populace, it is a secondary thought independent of the main clause which states that the right shall not be infringed. In other words without the militia clause the amendment is still complete in it's context. Have a nice day.

Click to expand...

Why do you think the words well regulated militia are there? Meaningless? Or should those words have any connection to what comes after?

Paschendale said:

MidRighter, I don't know how many ways I can explain that the constitution doesn't actually function how you want it to. You can say you want it to work that way, but you really can't say that it does. You'd basically need to overturn the majority if supreme court decisions that deal with economics and trade. The "abuses" that you point out... that's just making laws. You may not agree with them, but if you take issue with that much of American policy, maybe you're in the wrong country.

Click to expand...

Appeal to the court is not a good argument. Many decisions coming out of appeals courts and the SCOTUS have been reversed over time meaning they were not constitutionally sound to begin with. The fact is that the constitution was intended to be the alpha and omega of all proper law and does not function that way due to poor statesmen over the years. This is inarguable from a historical perspective as well as an honest legal one.

And yet the constitution makes other references to militias. It clearly expects these armed members of the populace to be organized that way. Each state is presumed to be keeping track of all of these folks with guns, and keeping them disciplined. Those people who fit the description of "gun nuts" are completely outside of what the constitution envisions. That's why the well regulated militia part is in there, to keep those people well regulated. That's why the right to keep guns is protected. Point out any other part of the constitution that is just poetic and doesn't mean anything. Go ahead.

Click to expand...

This is a severe mis interpretation. At the time of writing regulate meant to "make regular" meaning anything from holding drills to maintaining the means of defense should the militia be called up. The militia as well had no specific designation other than all able bodied males 18-40, seeing that people don't have to give up their guns for attaining age 41 and in the days of the founding merchant ships had full cannon armament I'd say that the constitution is on my side here.

LaMidRighter said:

This is a severe mis interpretation. At the time of writing regulate meant to "make regular" meaning anything from holding drills to maintaining the means of defense should the militia be called up. The militia as well had no specific designation other than all able bodied males 18-40, seeing that people don't have to give up their guns for attaining age 41 and in the days of the founding merchant ships had full cannon armament I'd say that the constitution is on my side here.

Click to expand...

With or without the 2nd amendment, congress has no enumerated power that would authorize it to restrict or regulate ownership of guns by the citizens of the several states.

radcen said:

The Constitution is very vague in many areas. I almost hate to say this, because I generally favor more precise wording, but in the case of the Constitution, the vagueness is what has worked for it and why it has lasted as long as it has.

There are areas that I wish were clarified and narrowed a bit, but overall I think some level of vagueness works well.

ETA: The biggest problem is not the Constitution itself, but the courts. There have been many instances where the Constitution was pretty clear, and the courts chose to ignore it anyway.

Click to expand...

Your last sentence is clearly correct--the New Deal and gun control are both examples that prove your point

TurtleDude said:

Your last sentence is clearly correct--the New Deal and gun control are both examples that prove your point

Click to expand...

I suspect that some would agree with you when it comes to the first half of the sentence of the Second Amendment. And that shows you how this topic is not just one sided.

haymarket said:

I suspect that some would agree with you when it comes to the first half of the sentence of the Second Amendment. And that shows you how this topic is not just one sided.

Click to expand...

I don't even look to the second amendment to note federal gun control is unconstitutional. The ninth and tenth amendments are the ones that matter when it comes to this

TurtleDude said:

I don't even look to the second amendment to note federal gun control is unconstitutional. The ninth and tenth amendments are the ones that matter when it comes to this

Click to expand...

You miss the point. There are some in our nation when the topic of guns are discussed, they strongly feel that the first half of that sentence that makes up the Second Amendment is not being taken literally.

We too often see a literal interpretation of the Constitution as a conservative issue. I just gave you a prime example where it can also work the other way.

TurtleDude said:

I don't even look to the second amendment to note federal gun control is unconstitutional. The ninth and tenth amendments are the ones that matter when it comes to this

Click to expand...

That's ridiculous! And you should know better. You know as well as I do how the supreme court has interpreted the tenth amendment, and how that interpretation has never wavered. The tenth amendment doesn't do that. And to suggest that the ninth amendment automatically protects gun ownership would say that there is nothing that possession of can be regulated. It would apply to guns the same as it would to Bengal tigers, heroin, and nuclear bombs. Are you really going to argue that the United States has no business regulating any of those things?

haymarket said:

You miss the point. There are some in our nation when the topic of guns are discussed, they strongly feel that the first half of that sentence that makes up the Second Amendment is not being taken literally.

We too often see a literal interpretation of the Constitution as a conservative issue. I just gave you a prime example where it can also work the other way.

Click to expand...

I disagree, the first half of the statement was a sufficient reason to be armed not a necessary reason and the USSC agreed with what just about every legal scholar and most of the public felt on the subject.

Paschendale said:

That's ridiculous! And you should know better. You know as well as I do how the supreme court has interpreted the tenth amendment, and how that interpretation has never wavered. The tenth amendment doesn't do that. And to suggest that the ninth amendment automatically protects gun ownership would say that there is nothing that possession of can be regulated. It would apply to guns the same as it would to Bengal tigers, heroin, and nuclear bombs. Are you really going to argue that the United States has no business regulating any of those things?

Click to expand...

what is ridiculous is the way the tenth amendment has been treated based on the fraudulent rape of it by the FDR courts.

Where was the federal government granted the power to regulate small arms or heroin? and using nukes, which INDIVIDUAL clearly has interstate consequences is idiotic

Centinel said:

With or without the 2nd amendment, congress has no enumerated power that would authorize it to restrict or regulate ownership of guns by the citizens of the several states.

Click to expand...

Absolutely right, however we are starting to see the arguments posited between the Federalist/Anti-Federalist papers proving more true by the day, it was argued that concise rights must be codified into law to insure that natural rights are not encroached, the counter was that specifically enumerating powers should suffice, however we are starting to see that the arguments for centralization are all starting to mirror the warnings of Anti-Federalist writings in that politicians are only sort of honoring the things which were codified and completely ignoring the proscribed limits of federal power.

TurtleDude said:

I don't even look to the second amendment to note federal gun control is unconstitutional.

Click to expand...

Of course it's unconstitutional. Congress may only exercise its delegated powers. Congress was never delegated any power that would authorize such police powers, therefore it may not legislate in that area.

haymarket said:

You miss the point. There are some in our nation when the topic of guns are discussed, they strongly feel that the first half of that sentence that makes up the Second Amendment is not being taken literally.

We too often see a literal interpretation of the Constitution as a conservative issue. I just gave you a prime example where it can also work the other way.

Click to expand...

The constitution does not mention my right to own a gun. Don't believe me? See if you can find the word "gun" anywhere in the constitution.

I have a right to bear arms. I'm bearing two, one attached to each shoulder!

(hey, we're being literal aren't we?)

Kal'Stang said:

Simple question. Are you a Literal Constitutionalist? IE Someone that believes in interpreting the US Constitution in a literal word for word way and leaving out the Spirit of the Law.

Poll is open.

Click to expand...

its kind of impossible to be a literal Constitutionalist in 2011, as the thing was written in 1787.

jgarden47 said:

My "limited" public school education tells me that in 1790, blacks represented 20% of the population in America and 92% were slaves. That translates into approximately 30 000 free blacks (men, women and children) throughout the nation. By 1860, 89% of America's blacks were still slaves.

African American - Wikipedia, the free encyclopedia

Click to expand...

:shrug: it looks like you pulled the numbers from Wikipedia, but I'm not sure how that alters the fact that blacks voted in several states?

...State constitutions protecting voting rights for blacks included those of Delaware (1776), [5] Maryland (1776), [6] New Hampshire (1784), [7] and New York (1777). [8] (Constitution signer Rufus King declared that in New York, “a citizen of color was entitled to all the privileges of a citizen. . . . [and] entitled to vote.”) [9] Pennsylvania also extended such rights in her 1776 constitution, [10] as did Massachusetts in her 1780 constitution. [11]...

As a result of these provisions, early American towns such as Baltimore had more blacks than whites voting in elections; [13] and when the proposed US Constitution was placed before citizens in 1787 and 1788, it was ratified by both black and white voters in a number of States. [14]... Additionally, blacks in many early States not only had the right to vote but also the right to hold office. [17]

Click to expand...

in addition, free blacks could vote in many of the states that also allowed slavery, it wasn't until after the Founders Generation had passed, for example, that North Carolina limited the franchise to whites (in 1835)


History is fun.

cpwill said:

:shrug: it looks like you pulled the numbers from Wikipedia, but I'm not sure how that alters the fact that blacks voted in several states?



in addition, free blacks could vote in many of the states that also allowed slavery, it wasn't until after the Founders Generation had passed, for example, that North Carolina limited the franchise to whites (in 1835)


History is fun.

Click to expand...

Just to make the point: Wikipedia is at least as good a source, probably better than FreeRepublic. You also seem to have not understood the point made by the guy you quoted. History is fun, but you have not shown a great knowledge of it in this thread.

It would have been nice if the OP would have provided some examples to support the term, Literal Constitutionalist and Spirit of the Law.
I concur with Post#16.
Post#18 is a good example of providing ‘examples.’

TurtleDude said:

I disagree, the first half of the statement was a sufficient reason to be armed not a necessary reason and the USSC agreed with what just about every legal scholar and most of the public felt on the subject.

Click to expand...

Again, you miss the point. In a discussion of taking the Constitution literally word for word, there are some people who feel that current interpretations of the Second Amendment conveniently ignore the first half of the sentence. They are taking it word for word and claiming that it applies to members of an organized militia. Far too often in these discussion of literalism, we see it only as a conservative issue - I am pointing this out as evidence that some on the other side see at least one issue associated with te Constitution as NOT being properly interpreted if we take it literally.

This entire idea of corporations being extended rights of individual citizens is another. A literalist can look at the first three words of the document and see it is talking about WE THE PEOPLE. The First Amendment has language which specifically talks about the RIGHT OF THE PEOPLE. The First Amendment, like the Second, is made up of only one sentence.

It is NOT my intent to argue the merits of either of these positions here to derail the thread. It is only my intent to show that the idea of a literal interpretation of the Constitution can also favor the views of some on the left and it is not only a rightist crusade.