The Constitution: Does Original Intent Still Matter?

winston53660 said:

Look up the case of Jock Sturges. The FBI took all his equipment negatives and his life for making images of nudist families when he came back from France on the airplane.

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He's a photographer.

American said:

Name a fire arm that isn't contrary to public safety (the way you mean it).

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Hey, do you understand how government works?

IT'S NOT THE WAY I SEE IT.

IT'S THE WAY THE PEOPLE (VOTERS) OF INDIVIDUAL STATES AND COUNTIES SEE IT.

GET IT?

If I call you name I'll get reprimanded by the mods, but you say some of the dopiest, stupidest things.

Harshaw said:

Correct, and banning drawn kiddie porn would be 1st Amendment issue. But as I said, to my knowledge, it isn't illegal anywhere, nor would such a ban likely survive a 1st Amendment challenge.

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Oh, right, at first I didn't see that you were drawing a distinction between the "actual" (photographed, videotaped,etc) and the "manmade (drawn, etc)" with regards to the amendment..

Yes, I don't know of anywhere the "manmade" porn is banned either, as likely the 1st would be invoked...no rights having been violated...

Harshaw said:

He's a photographer.

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And that is different from drawing how?

fair warning I know alot about studio art.

winston53660 said:

And that is different from drawing how?

fair warning I know alot about studio art.

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Mostly because in order to create photos of naked kids, you need naked kids.

Is it really that difficult to figure out?

hazlnut said:

Hey, do you understand how government works?

IT'S NOT THE WAY I SEE IT.

IT'S THE WAY THE PEOPLE (VOTERS) OF INDIVIDUAL STATES AND COUNTIES SEE IT.

GET IT?

If I call you name I'll get reprimanded by the mods, but you say some of the dopiest, stupidest things.

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:doh

So, the voters can just vote away black people's rights?

Harshaw said:

Mostly because in order to create photos of naked kids, you need naked kids.

Is it really that difficult to figure out?

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Really? In a dark room I could piece together parts that looked like a naked kid. Even Susan Sontag has said after her publication of "On Photography" that photography is not always reality.

I really do not have a problem with nude images of children or nudity in general. Heck I give the kid a bath several times a week and he is not wearing a bathing suit. Sally Mann did some interesting images in this area as well.

What I do have a problem with is the sexual abuse of children and I will be the first to call the authorities and pull out my over education in the area of studio art. And since I'm overly educated I will not quit until I find the right person to take action.

winston53660 said:

Really? In a dark room I could piece together parts that looked like a naked kid.

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Then it wouldn't fall under a kiddie porn ban.

But that's not what Jock Sturges did. (Besides, he wasn't convicted of anything.)

Not really sure what you think you're arguing against here.

Harshaw said:

Then it wouldn't fall under a kiddie porn ban.

But that's not what Jock Sturges did. (Besides, he wasn't convicted of anything.)

Not really sure what you think you're arguing against here.

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Ah Ha I see you know the case. Even still his life got screwed for a while not knowing the outcome.

Not really sure what you think you're arguing against here

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Ya know I'm not sure either. Once people start talking images in forums like this I have a bad habit of getting on a soap box. I chalk it up to my over education in the field: Pratt undergrad and NYU graduate school then somewhat of a professional career.

Ethereal said:

:doh

So, the voters can just vote away black people's rights?

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Forget it, he doesn't know what he's talking about.

hazlnut said:

Hey, do you understand how government works?

IT'S NOT THE WAY I SEE IT.

IT'S THE WAY THE PEOPLE (VOTERS) OF INDIVIDUAL STATES AND COUNTIES SEE IT.

GET IT?

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Can you explain how machineguns do not qualify as 'arms' as the term is used in the 2nd?

If not, then, regardless of how may people agree with you, your position is unsound.

But, that's not new.

Frodly said:

But there are other factors which make a originalist interpretation of the constitution a bad idea.

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What factors are those?

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?

No response from our supporters of judicial activism? I was looking forward to hearing what their thoughts were.

Psychoclown said:

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.

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Technically speaking, they aren't appointed for life. According to the Constitution, their term is "good behavior." Since it doesn't specify what qualifies as good behavior, Congress is well within their rights to throw the justices out whenever they want.

Psychoclown said:

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?

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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.

Psychoclown said:

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?

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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.

Psychoclown said:

3. How does one objectively determine what parts of the Constitution are universal and what parts are outdated?

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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.

Psychoclown said:

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?

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Sure, but any constitutional amendment to change the constitutional amendment process would still have to go through the constitutional amendment process.


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.

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?

Morality Games said:

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?

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where do you identify a "disparity in intent" with regard to the language in the constitution?

Kandahar said:

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.

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Very few segments in our society, as large and diverse as it is, can agree on what "values" properly match our society, least of all, I would say, politically appointed justices.

Kandahar said:

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.

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Where do you identify an evident "lack of consensus" that has not already been rectified through the amendment process?

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.

Psychoclown said:

No response from our supporters of judicial activism? I was looking forward to hearing what their thoughts were.

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The "judicial activists" as you describe them are the folks who argue that we should follow the intent. The strict constructionists are the folks that argue we should follow the letter.

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.

teamosil said:

Generally speaking, the strict constructionist judge will more often be on the side of a limited interpretation of our constituational rights.

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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.

other said:

No, usually it's the other way around...the constitution grants all legitimate powers to the federal government, not rights to individuals.

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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.

teamosil said:

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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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.

other said:

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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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.

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.