whats pfc manning going through right now?

Is it something legal? Is it just?

---------- Post added at 01:52 PM ---------- Previous post was at 01:40 PM ----------

Again, I'm confused. Are you saying that federal laws mandating the death penalty, incarceration, and fines of any kind are unconstitutional?

Or are you saying rights are inalienable and absolute unless they're suspended?

Or are you saying rights re inalienable and absolute even when they're suspended?

what the founders did was frame a legal process and put it into motion.

what strict construction people want is to freeze the process part and turn the common law tradition into a version of the civil law tradition. i've mentioned this before...what the strict constructionists are after is a revolution in the common law tradition itself that they are dishonest about, that they hide beneath some absurd return to sources. which they aren't real smart about interpreting.

somehow this reminds me of a famous line from stephen dedalus:

history is a nightmare from which i am trying to awaken.

One of the aspects I seem to remember most about the writings of Thomas Paine is his criticism of heredity in government. This was a prime criticism of monarchies or aristocracies. It is irrational to pass on power on the mere basis of family.

The obsession over the intent of the founders is a kind of political aristocracy. It assumes that they are best interpreters of the Constitution, and that there are no heirs.

Well, they did write the bloody thing. Who's more qualified to interpret a work: the author, or some ivory-tower prat trying to pigonhole that work 200+ years later?

have you ever written anything for publication, dunedan?

and that would matter, how?

Your framing of this topic strikes me as fundamentally dishonest.

This isn't a question of the development of medical science, it's about rejecting reality at the expense of a child's safety. You're welcome to believe whatever you want as a part of your religious freedom, but endangering the life of someone you're responsible for crosses the line.

Source

The treatment for blood infection, pneumonia, and a cyst on the neck is not prayer and oils, as you well know. It's antibiotics and surgery. We know these treatments work. It's not blood-letting, but rather tested and confirmed science.

Would you allow your own child to die because all you could muster to save his or her life was a prayer? Are you that kind of person?

Not that it's relevant or any of your business, but yes. Only one was a non-academic publication, though- an article for Escape Artist magazine. I've also defended or presented numerous papers at the undergraduate level, the best of which was "Pyotr Illich Tchaikovski And The Silver Age Of Russia," which I presented at the Phi Alpha Theta 2005 Symposium at my alma mater. My short fiction isn't yet up to a standard that I would regard as publication-worthy, however, and remains a hobby.

would you allow your child or spouse to die because you couldn't muster the money to save them?

Except that they're no longer around to interpret their work directly, so in order to use their interpretations we have to rely on interpretations of their interpretations. Which just means that their writings get interpreted according to the ideological bent of the person doing the interpretation. Pigeonholing is pigeonholing, regardless of whether its being done by some ivory-tower prat or some overweight dude in camo with a hunting rifle in one hand and a can of bud light in the other (as long as we're using stereotypes).

What does that have to do with the question it absolute vs. limited rights? I'm talking about a necessary limitation on the freedom of religion. If we had an absolute freedom of religion, parents could treat their children with candles, prayers and oils. I don't want to live in a country where children are forced to suffer and die because of their parent's religious beliefs. Do you?

So you'd rather a group of dead men be the prime interpreters of a document that said dead men wrote to prevent such forces as aristocracy and tyranny from exerting power over the people?

Please tell me I don't need to remind you that the foundational idea behind a constitutional republic is that the people retain supreme power over the government via a constitution.

The American government is beholden to the Constitution, not its authors. The founders aren't a kind of American pantheon.

What next, obsessing over what Matthew, Mark, Luke, and John intended?

How about instead of interpreting their words, we just...I dunno...read the things? Take them at their words instead of trying to interpret all sorts of convenient, allegedly hidden meanings into them?

And BTW, ivory-tower prats and overweight bubbas both come in both left- and right-wing flavours. Only one of these two types, however, gets to influence public policy; the other is simply influenced -by- it.

This.

Constitutional law exists as a means to refer to the Constitution in matters of the nation. This practice is done among the people; you know, the living kind.

Law making, enacting, and enforcing is meant to be done under the authority of the Constitution. It is up to the people to determine whether this is being done accordingly. It's not up to ghosts.

---------- Post added at 03:44 PM ---------- Previous post was at 03:41 PM ----------

The problem with interpretations of the Constitution is that it's not always that well written. I've talked about this with some of the Amendments. I haven't read the whole Constitution, but it's my understanding that a number of problems arise with some of the diction and sentence structures. I suppose this is why it's so compelling to want to keep returning to the founders' intentions.

Correct. However, when making those determinations, the words of the authors of the Constitution, taken at face value, should be given the greatest possible weight. Not fads, the laws of other nations, religious opinion or social-engineering schema.

Reading is interpreting. You can't read something with committing an act of interpretation.

Even if their writings were pure mathematics, with only one possible interpretation, that wouldn't necessarily make them relevant.

I'm pretty sure that the tea party disagrees with your notions of bubba-disenfranchisement. What the recent elections and resulting policy actions have shown is that the bubbas are just as bad, if not worse, than the ivory-tower folk at policy.

dunedan---i asked not because i wanted to be intrusive (though i have no problem with that on occasion) but because, in my experience anyway, it's pretty routine that people have quite different interpretations than i do of what i write and often those interpretations are more interesting than what i thought i was doing when i arranged the words in a particular order. granted i'm working in a form that allow me to try to maximize that play, but still...

the point is that it's not at all clear that the people who wrote words are best at interpreting their meaning, nor is it obvious that intent in the use of a word exhausts meaning---and this last point regardless of genre. so it is not at all obvious that the intent of the framers is definitive in establishing the meaning of what the framers wrote. nor is it obvious.

in terms of historical methodology, it's pretty basic that statements about intent constitute only **one** device to shape interpretations of statements.

this is particularly the case for law within the american common law tradition, which was set up to be adaptable to changing circumstances.

but the point is more general--it's at best naive---at worst an exercise in dilletante wanking---so argue that intent exhausts meaning in almost ANY textual format.

think about the problems that arise here on the board because statement after statement that's intended as ironic or sarcastic is read straight or the opposite.

if you take plain text at it's meaning, it's not necessary to interpret. that is, unless the purpose is to thwart the plain text you're reading.

---------- Post added at 04:20 PM ---------- Previous post was at 04:16 PM ----------

and in case you haven't noticed, we're a long way from the constitution as it was written.
however, those laws and enforcement shouldn't go beyond the prescribed powers in the constitution, yet that's exactly what we have today. Are those constitutional in reality? or are the people powerless to stop it now?

how are they not well written? there's really only one amendment that has any vagueness to it and that's the fourth.

---------- Post added at 04:22 PM ---------- Previous post was at 04:20 PM ----------

then i'd say you're free to move to another country. that or you can propose a new amendment to the constitution to limit freedom of religion or a new constitutional convention.

i suspected that at the core of strict construction was some version of luther's notion of reading through grace that by-passes interpretation.
it's a very protestant way of thinking.
seriously.
catholics dont think this way about scripture, which is the paradigm that's at play here.

but there's a way in which i like communing with the framers. i like the idea of a thomas jefferson finger puppet: you can stuff your index finger up its ass and then say: what do you think of THAT one, thomas? and the thomas jefferson finger puppet will say: what are you asking me for? the words are plain.

it'd be fun theater.

but as an approach to law, it's insanity.

The act of interpreting isn't a choice. It is a necessary step in converting the image of the words into ideas in your head. You are interpreting this sentence as you read it, combining the words I've written with the things you already know. The resulting mixture of ideas resulting from your reading of what I'm writing are likely different from the mixture of ideas someone else might get from reading the exact same thing.

in other words, more derp?

---------- Post added at 10:29 PM ---------- Previous post was at 10:27 PM ----------

which makes life so much more complicated. I mean, how does one wake up in the morning. it takes so much interaction between brain and muscles just to open up your eyes, so yeah, i can see how most people are far short of the capability of reading plain text because one must interpret everything. stop signs should be made bigger since interpretation is required, making stopping distances longer.

It's the other way around. Laws have been passed and are being enforced preventing religious fundamentalist parents from endangering their kids. The country we both live in limits constitutional freedoms. That's the United States of America. You're welcome to go and found the Absolutist States of America should you choose.

Right, well, this doesn't have anything to do with what I said. Though I suspect if I tried to interpret your words, I'd know what the hell they had to do with that I wrote. However, I'm going to go the dksuddeth route and "not interpret" and so you should just pretend I'm looking at you incredulously, slack jawed, wondering what waking up in the morning and stopping at stop signs has to do with interpreting the constitution.

I'm going to put this in plain text so that you can interpret its meaning: "taking plain text at its meaning" is interpreting it.

I know, right? It's been well over 200 years now!

I don't know. Not without going into specific examples. But, no, laws and their enforcement shouldn't in principle go beyond the powers in the Constitution.

I've mentioned this before. If we were to take the Constitution in its current form and present it as though it were new and for consideration to be enacted today, I strongly believe it would be ridiculed for its vagueness and awkward constructions. If this weren't the case, people would never bother to consider the framers' intent or the Federalist Papers. They'd just say, "Hey, it's all right in there in the Constitution. It's clear, cogent, and prescriptive. I don't know what your problem is. I don't even know why we bother with the Supreme Court and Constitutional scholars."

have you agreed wholeheartedly with every single court decision and federal law EVER!!!!!!!!! made, according to their view of the constitution?

---------- Post added at 11:45 PM ---------- Previous post was at 11:41 PM ----------

it shouldn't be that difficult to figure out, that is unless you don't choose to.

you say that the constitution MUST be interpreted because the plain text of words has lost their meaning. this would indicate that there is nothing of any other kind of written text by the framers to explain what they meant by their words in the constitution.

so, that in mind, how is the word 'stop' accepted to be just what it says, stop? it's because you were taught what the word meant, and that it would mean that for your entire lifetime. well that's what happened with the constitution. before it was ratified, commentators went to all 13 colonies and told the people exactly what it all meant, before they voted on it. there were no hidden surprises.

so, does the constitution mean what it meant when it was written, or do you want to change it to suit your own ideals?

---------- Post added at 11:46 PM ---------- Previous post was at 11:45 PM ----------

read the above.

Derp?

http://i170.photobucket.com/albums/u...ssure-sign.jpg

It makes a lot of sense when you consider what the authors were willing to shoot soldiers over in their backyards before they sat down to write the documents.

dksuddeth is talking about rights, and you're talking about legal permission. The question is if the two are in line?

Well this strict constructionist is about getting out of massive debt and maintaining individual freedoms.

In that particular case, I agree with you about the remedy. But what is science other than guesswork? Tested and confirmed? It has taken a series of tragedies to get where we are today with medical knowledge, and I guarantee you that things we are doing right now will be laughed at in a hundred years or so. As you said, the parents are responsible for the well being of their child, not the government. Whatever form of voodoo they wish to practice to avoid whichever afterlife they believe in is their business.

Would you allow your child to die because some doctor recommended a treatment you believed was wrong or riddled with failure? What makes Colleen Hauser's or Suzanne Somers' beliefs about cancer treatment so deadly and dangerous? If the government isn't allowed to adjudicate death, they shouldn't be allowed to adjudicate life either.

I don't want to live in a country where people are not allowed to have an honest say in the treatment for their dying child.

That's the issue with some areas, and why other texts from the time should be looked at if there's a question about the plain meaning of the words and phrases used.

That's what it comes down to. We have a hugely bloated government and people who are taxed, licensed, charged fees and subject to millions of laws and regulations. Some how I don't think that was part of the grand vision.

Like the way the commerce clause has been stretched and twisted?

You do realize that you interpret the constitution when you read it, don't you? Because reading is fundamentally and unavoidably an act of interpretation?

I think when you read "interpretation" you interpret its meaning as "motherfuckers are diluting the holy written word of the founders". Which is pretty funny when interpreted in the context of your argument- which is apparently that interpretation is wrong.

Do you understand that you've interpreted the meaning of the plain text word "interpret" to mean something completely different than (but not unrelated to) its actual usage in the context of this discussion? If you're having trouble interpreting plain text written in the language of your time, how on earth can you think that it's easy as pie to "correctly" interpret a document that was written in the legalese of the 18th century?

Science isn't guesswork, it's the most successful system in determining objective reality. It's infinitely more successful than religion in treating people with injuries and illnesses. Science is the absolute best tool we have available for treating ill children, regardless of your religious beliefs.
It's taken a series not of tragedies, but breakthroughs to get where we are today with medical knowledge. Where we are is fairly daunting. Did you know, for example, that my descending aorta is made of plastic? I was born with a cardiovascular defect that required surgery—not prayer—to correct. Every generation sees medical knowledge and practice grow more and more complex and precise, and more capable. The same was true 100 years ago, which was similarly more advanced than 200 years ago. All of this is irrelevant to the topic, though. Current medical knowledge and ability would have saved this child's life. We have plenty of experience treating blood infections and pneumonia. I myself had endocarditis at age 7 and was cured by what was modern medicine 20 years ago.
Let's say that I have a son. I take him out behind the house and shoot him in the head. I shouldn't be charged with murder because I'm responsible for the well being of my son, not the government? Are you sure that logic holds up?
Recently, Jenny McCarthy started a campaign to stop parents from immunizing their children, warning that immunizations carried with them dangerous side effects such as autism. In case you're wondering, no, Jenny McCarthy does not have her MD. She's what you might call a layman in the area of medicine. As you might guess, she didn't have her children vaccinated, and many other people didn't get their children vaccinated, assuming that this celebrity was dissenting to a failure of medical professionals and perhaps even science itself.

It turns out vaccines aren't dangerous and don't cause autism, but they do protect us with something called 'herd immunity'. If enough people in a population are vaccinated against a disease, the community collectively has a herd immunity to that disease, meaning that too many people are immune fro the disease to successfully spread through a population. Do you know what the cost of Jenny McCarthy's unabashed hubris and ignorance was? There was a measles outbreak in 2008. Measles, which is all but wiped out in the United States, saw a sudden spike in cases corresponding directly the the behaviors of Jenny McCarthy's anti-vaccination movement. She and her army of morons set us back set us back decades because they were too stupid to realize that they don't in fact know more about medicine than experts. You can read more about this here

If my son or daughter were in serious medical danger, I'd have the humility to trust people who know far more than I do about medicine.

non sequitor.

methodologically there's no transparency at all with a strict construction viewpoint. because the interpretations are arbitrary--and necessarily so--because they're predicated on some fiction of "original intent".

to get that fiction to operate, strict constructionists violate some very basic rules of the game they claim to want to preserve--they elevate the federalist papers etc to the status of the constitution itself. and they erase the space for precedent as an interpretive guide.

original intent means what conservative activist judges say it means. this in the name of preventing judicial activism, which is basically conservo-code for "decisions we don't like."

even if ultra-rightwing militia types dont like the current precedent-based legal system that the constitution they claim to defend put into motion, the fact remains that you can read law and read court decisions and find in them interpretive arguments concerning previous statute and constitutionality. and you--or a proxy--can appeal those interpretations. the mobility of case law presupposes interpretations. if you seriously believe in this fiction of "original intent" all that disappears.

what's funny is that an immediate consequence of strict construction becoming the legal philosophy of the land would be a constitutional crisis because the constitution is not written as the sort of document that the strict constructionists want it to be. look at the difference in the way the german constitution is written---civil law is made with an assumption that law can be fashioned to more or less eliminate the space for interpretation on the part of judges. it's a **fundamentally** different approach.

that's why these far right legal "experts" and pseudo-historians are funny---so long as they stay on the margins, far from power.

well this is just a ton of malarkey. I'm original intent and strict constructionist, yet i'm far from a conservative activist judge. What you're trying to do is take Scalias so called position of strict constructionism and original intent and turn it in to a wrong headed attempt at something, but the problem is that Scalia is nothing more than an activist judge changing the constituiton as it was written in to something that he wants to see done. His bullshit opinion in Gonzalez v. raich is more than proof of that.

right, because one would THINK that private property rights would be sacred, until tyrannical judges decide that a larger tax base is preferable to a individual being able to hold on to his own property, so black robed tyrants decide that 'public use' definitions should be broadened to include 'public benefit', i.e. Kelo. Or that we'll go ahead and forge out exceptions to the bill of rights, specifically the 4th Amendment, by stating that YES, DUI checkpoints are indeed violations of the 4th Amendment, but I, as a supreme court justice, feel that drunk driving is such a HUGE problem, that we'll overlook unreasonable search and seizure requirements for this problem.....until the next one comes along. This attitude of 'stare decisis', combined with the liberal position of a living document theory, places YOUR inalienable rights in the hands of 9 people and allows them to determine whether or not your rights can be violated for their own ideology.

Again, this is not strict constructionism. It's strict Scalia-ism and not worth the effort to explain. it's just wrong, and doubly wrong to continue to accept scalias definition of himself as a strict constructionist when he isn't.

How did we figure out that cranial trepanation isn't the best way to treat mental illness? Why do opiates like laudanum now require prescriptions? Here's some fun reading for you:

MedWatch Safety Alerts for Human Medical Products

A huge number of people are regularly affected by bad medicine. Whether it's instinct, religion, or a wild assed guess, it's a parent's right to veto.

Interestingly medical malpractice revolves around "accepted standards," not actual harm or damage. Collective behavior dissolves individual responsibility. Many of those breakthroughs were someone pointing out how bad everyone else was messing up.

:orly: Way to take a statement out of context. Ventilating your kid's melon isn't going to prevent autism. There are many people who have experienced success with nontraditional remedies, and parents should have the legal ability to seek whichever treatment they choose. They're not just babysitting the government's kids who can whisk them away at the first sign of non-mainstream behavior.

For your info I think medicine has things right most of the time. The problem
is that doctors have been wrong, and will continue to be wrong. There are individual cutting off the wrong leg screwups, and widespread going along with the crowd whoopsie daisy's. Medical convention shifts, twists and completely changes direction from time to time. More importantly, a doctor is a service provider, the patient is the customer.

And which judge is qualified enough to decide which treatment is best for the human body? The legal system is based on law, it knows little of medicine.

Legally forcing a man of faith to recieve treatment from a secular doctor is no different than legally forcing a man of science to recieve faith based medical treatment.

A minimalist government similar to the one we had in our nation's childhood wouldn't require record-setting national debt to sustain.

You're making some pretty broad generalizations.

What kind of ultra rightwing are we talking about here? The far left has a different view on "ultra right" than the far right.

I wouldn't go that far.

It's also obvious in recent rulings that different weights are assigned to different amendments based on nothing more than emotion. The 1st, 3rd and 5th are read much more literally than the 2nd (GCA '68) and 4th (DUI checkpoints, TSA, expansion of Terry stops), the 9th is all but ignored (driver's licenses and "driving a car is not a right" etc.), and the 10th is patted on the head and sent out to play with the other children by countless federal laws and agencies.

It's not well publicized, but the state's rights movement is gaining certain momentum. Several have passed or almost passed laws that fly in the face of the current federal government norms. Several have drawn clear lines in the sand that haven't been crossed yet, Montana even threatened to secede. The health insurance lawsuits are worth following as well.

State governments baiting the federal government into another civil war have me much more concerned than the spectrum of loonies who're pissed about their personal hot topics.

It seems to me that interpretation is needed in any text. The idea that anything comes with a ready made interpretation is a bit strange. I hadn't thought about it in these terms, but Roachboy makes a good point in that the strict constructionist view is a bit like evangelical views of the bible as revealed word. As with the bible, the contradictions alone would make it necessary to impose some sort of interpretation on the constitution.


But that is an old argument that need not be rehashed. The more interesting question with regards to what the founders "meant" is "so what?" Unless they were somehow some form of holy men delivering universal truths from some sort of omniscient god, it seems to me that there is no reason why their word should be treated as sacred.

the founding fathers' text is treated as a holy cow because people are fucking lazy.

educating and reforming is hard!

so you advocate disregarding the laws that founded a free nation in hopes of supplanting it with something else?

Why are you interpreting what he said? Why can't you just take his words at face value?

The First Amendment is clear you have the right to question authority and the 2nd Amendment is their to guard the first. And Congressmen and Senators who try to oppose the 1st Amendment cause it might "offend" someone need to be fired and tried for treason against the Constitution.

http://img220.imageshack.us/img220/6...ndon1ap.th.jpg

Wow, I see examples of protected speech in your picture there.

Other than that, all I see is a massive failure to understand the Constitution. Especially the part where Congressmen and Senators get to practice free speech too.

apparently, first amendment rights don't apply to people burning qurans in michigan.