Supreme Court overturns ban on direct corporate spending on elections - Page 5 - Tilted Forum Project Discussion Community

rahl · 02-02-2010, 12:45 PM

Quote:

Originally Posted by dksuddeth

I disagree. I do have that right. my rights are not subject to the fears, whims, demands, or desires of 9 black robed tyrants. any law that violates the constitution is null and void.

.

You can disagree all you want, but the REALITY is that you don't have that right. It is a restriction placed on the right to bear arms. I also carry a concealed weapon, but not in places I am restricted.

Like I said, not recognising that a law applies to you is not the same thing as an absolute right.

I'd love to see you argue in ANY court if/when you get arrested for possesion of a deadly weapon where it's restricted, that you don't recognise the courts authority to impose the laws of the land on you.

roachboy · 02-02-2010, 12:51 PM

well wouldn't the point of the rhetorical construct of natural law be to give you recourse to a standard or idea of a standard that's not identical with the existing legal system so that you could argue a case such as dk's? and there need be no agreement that the "natural law" that was referred to actually *existed*---it's more a normative thing, an idea. such things move around over time with the what they're used to oppose.

it's kinda hard to figure out what natural law could possibly be outside of a religious framework. lots of folk have tried to put it somewhere, say what it is. it hasn't worked out so well.

but as one of a set of rhetorical tools that can be used to criticize or challenge an existing system or law, it's a useful fiction. there are others which are probably as or more useful for thinking about stuff. but pragmatically, since you have the idea of natural law built into the constitution itself (as an effect but no matter) i can see the appeal of using the term.
i can't see the appeal of claiming that there *is* natural law or that (within a religious framework) if there is one that human types know what it is.

dksuddeth · 02-02-2010, 01:00 PM

Quote:

Originally Posted by rahl

You can disagree all you want, but the REALITY is that you don't have that right. It is a restriction placed on the right to bear arms. I also carry a concealed weapon, but not in places I am restricted.

Like I said, not recognising that a law applies to you is not the same thing as an absolute right.

I'd love to see you argue in ANY court if/when you get arrested for possesion of a deadly weapon where it's restricted, that you don't recognise the courts authority to impose the laws of the land on you.

again, it wouldn't be the first time that the courts were totally wrong.

Derwood · 02-02-2010, 01:24 PM

So the judiciary can NEVER limit the rights of the Constitution for the common good?

dksuddeth · 02-02-2010, 01:30 PM

Quote:

Originally Posted by Derwood

So the judiciary can NEVER limit the rights of the Constitution for the common good?

ABSOLUTELY NOT!!!!!! It is NOT the governments job, any branch, to change, adjust, limit, alter, or reinterpret the constitution because they feel it's for the common good. There are TWO ways to change the constitution, either its wording or its meaning, and the judiciary isn't one of them.

ratbastid · 02-02-2010, 01:34 PM

Quote:

Originally Posted by dksuddeth

ABSOLUTELY NOT!!!!!! It is NOT the governments job, any branch, to change, adjust, limit, alter, or reinterpret the constitution because they feel it's for the common good. There are TWO ways to change the constitution, either its wording or its meaning, and the judiciary isn't one of them.

One of those is the amendment provision. What's the other?

dksuddeth · 02-02-2010, 01:50 PM

Quote:

Originally Posted by ratbastid

One of those is the amendment provision. What's the other?

there are two ways for the amendment provision, that is what I was referring to.

one way is for congress to submit an amendment change, the other is for the states.

ratbastid · 02-02-2010, 01:52 PM

Ah. I gotcha.

rahl · 02-02-2010, 08:59 PM

Quote:

Originally Posted by dksuddeth

again, it wouldn't be the first time that the courts were totally wrong.

Ok, now I understand. You know exactly what the framers had in mind, and you also know better than every supreme court justice in history. Now it all makes sense

dksuddeth · 02-03-2010, 12:03 AM

Quote:

Originally Posted by rahl

Ok, now I understand. You know exactly what the framers had in mind, and you also know better than every supreme court justice in history. Now it all makes sense

I know it's hard for people to comprehend, but you can indeed read the federalist papers, anti fed papers, and the constitutional debates as well as all of the commentaries on the proposed constitution and come to the realization you understand exactly what the framers wanted. It's not written in sanskrit and it doesn't take a law degree with years as a judge to understand what 'shall make no law' means.

dippin · 02-03-2010, 02:20 AM

Quote:

Originally Posted by dksuddeth

I know it's hard for people to comprehend, but you can indeed read the federalist papers, anti fed papers, and the constitutional debates as well as all of the commentaries on the proposed constitution and come to the realization you understand exactly what the framers wanted. It's not written in sanskrit and it doesn't take a law degree with years as a judge to understand what 'shall make no law' means.

So are you saying that anyone who disagrees with what you view as the obvious interpretation of the constitution actually knows that they are wrong, but instead are just lying through their teeth? That any disagreement at all about the constitution arises solely out of bad faith of those who disagree with the apparently obvious definition?

Of course, shall make no law is obvious in its meaning. But what exactly is speech and press are not so clear, as the discussion that started this thread exemplifies. Is donating money to a certain cause or organization speech that is protected by the first amendment? Is espionage speech that should be protected by the first amendment? False drug advertisement? Child pornography?

rahl · 02-03-2010, 08:27 AM

Quote:

Originally Posted by dksuddeth

I know it's hard for people to comprehend, but you can indeed read the federalist papers, anti fed papers, and the constitutional debates as well as all of the commentaries on the proposed constitution and come to the realization you understand exactly what the framers wanted. It's not written in sanskrit and it doesn't take a law degree with years as a judge to understand what 'shall make no law' means.

Will you atleast admit that the framers in no way could invision situations that have arison in modern times. If you can atleast admit that then you can see why the vast majority understand that you can't take the literal text of the constitution and apply it to today's situations. That's why it must be interprited by the judiciary.

dksuddeth · 02-03-2010, 08:42 AM

Quote:

Originally Posted by rahl

Will you atleast admit that the framers in no way could invision situations that have arison in modern times. If you can atleast admit that then you can see why the vast majority understand that you can't take the literal text of the constitution and apply it to today's situations. That's why it must be interprited by the judiciary.

I will not admit that, simply because none of their writings indicated that they cared. Their whole intent was to limit the federal government no matter the 'modern times'. It is why they implemented an amendment process to be initiated by the people. There is no possible way that after experiencing the abuses of a central government, they would imply that they would allow a central government to change the constitution without the peoples express permission via the amendment process. NO POSSIBLE WAY!

rahl · 02-03-2010, 08:52 AM

Quote:

Originally Posted by dksuddeth

I will not admit that, simply because none of their writings indicated that they cared. Their whole intent was to limit the federal government no matter the 'modern times'. It is why they implemented an amendment process to be initiated by the people. There is no possible way that after experiencing the abuses of a central government, they would imply that they would allow a central government to change the constitution without the peoples express permission via the amendment process. NO POSSIBLE WAY!

What you fail to realise is that things evolve. Speech now means different things than it did in the 18th century, so the judiciary is charged with interpriting the language of the constitution to fit with current situations.

dksuddeth · 02-03-2010, 09:01 AM

Quote:

Originally Posted by rahl

What you fail to realise is that things evolve. Speech now means different things than it did in the 18th century, so the judiciary is charged with interpriting the language of the constitution to fit with current situations.

and what you fail to realize is that by allowing, endorsing, and promoting the government that we created to 'reinterpret' things in the constitution with each new evolution, you are giving up your rights and freedoms. It's how we end up with exceptions to every amendment like 'well regulated militia' to mean the national guard when the guard was not even an idea when the 2nd was written, or how the 4th Amendment can be whittled down because an epidemic of stupidity in drunk driving demands we give up more protection, or the commerce clause power gets expanded because the government wants to control what you can grow on your own property for your own use, or how the political turmoil of todays century can be used to reduce freedom of speech to 'free speech zones'. Is this the kind of 'living document' you think the founders envisioned when they wrote it, after having a central government do the exact same thing to them that inevitably led to a revolutionary war? I think not.

Derwood · 02-03-2010, 11:47 AM

Quote:

Originally Posted by dksuddeth

and what you fail to realize is that by allowing, endorsing, and promoting the government that we created to 'reinterpret' things in the constitution with each new evolution, you are giving up your rights and freedoms. It's how we end up with exceptions to every amendment like 'well regulated militia' to mean the national guard when the guard was not even an idea when the 2nd was written, or how the 4th Amendment can be whittled down because an epidemic of stupidity in drunk driving demands we give up more protection, or the commerce clause power gets expanded because the government wants to control what you can grow on your own property for your own use, or how the political turmoil of todays century can be used to reduce freedom of speech to 'free speech zones'. Is this the kind of 'living document' you think the founders envisioned when they wrote it, after having a central government do the exact same thing to them that inevitably led to a revolutionary war? I think not.

You can't name a single thing that government has "reinterpreted" that is for the common good? Not one?

dksuddeth · 02-03-2010, 11:51 AM

Quote:

Originally Posted by Derwood

You can't name a single thing that government has "reinterpreted" that is for the common good? Not one?

whether I can or not is irrelevant. It wasn't done within the constitutional framework of their enumerated powers.

ratbastid · 02-03-2010, 11:56 AM

You've come up against the end of the conversation with dksuddeth on this one, gents. He's a Strict Constructionist true believer, and he's as religious about it as the Pope.

Derwood · 02-03-2010, 12:47 PM

and he's just (about) not going to take it anymore!

Baraka_Guru · 02-03-2010, 01:32 PM

Well, if the Constitution isn't a living document and if it cannot be actively interpreted by a judiciary, then I would say that it is an inherently flawed and dysfunctional document, especially when you consider how unclear and sometimes misleading the language is. America needs to amend the hell out of it.

If this same document were to be presented today as a nation's proposed constitution, what do you think people would say about it?

Cynthetiq · 02-03-2010, 01:50 PM

This explains this discussion better than I have seen elsewhere.

Quote:

View:
Source: Opinionator NYTimes.com
posted with the TFP thread generator

February 1, 2010, 9:30 pm
What Is the First Amendment For?
By STANLEY FISH

Stanley Fish on education, law and society.
Tags:

Campaign Finance, First Amendment, Supreme Court

Citizens United v. Federal Election commission — the recent case in which the Supreme Court invalidated a statute prohibiting corporations and unions from using general treasury funds either to support or defeat a candidate in the 30 days before an election, and overruled an earlier decision relied on by the minority — has now been commented on by almost everyone, including the president of the United States in his state of the union address.

I would like to step back from the debate about whether the decision enhances our First Amendment freedoms or hands the country over to big-money interests, and read it instead as the latest installment in an ongoing conflict between two ways of thinking about the First Amendment and its purposes.
Related

* Linda Greenhouse: The Next Time »
* Supreme Court Decision (pdf), Jan. 21, 2010

We can approach the conflict by noting a semantic difference between the majority and concurring opinions on the one hand and the dissenting opinion — a 90-page outpouring of passion and anger by Justice Stevens — on the other. The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,” while the word most important to Stevens’s argument is “corrupt.”

Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored. (“[A] statute which chills speech can and must be invalidated.”) Stevens is worried — no, he is certain — that the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”

When Stevens writes “has long been recognized,” he is invoking the force of history and asking us to take note of the reasons why many past court decisions (including one written by then-Chief Justice Rehnquist) have acknowledged the dangers posed by corporations, dangers that provoked this declaration by Theodore Roosevelt in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”

Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space. The majority, Stevens admits, does “acknowledge the validity of the interest in preventing corruption,” but, he complains, it is not an interest it is interested in, for “it effectively discounts the value of that interest to zero.”

That’s not quite right. Kennedy and the others in the majority make the proper noises about corruption; they just don’t think that it is likely to occur and they spend much time explaining why corporations are citizens like anyone else (a proposition Stevens ridicules) and why, for various economic and public-relation reasons, they pose no threat to the integrity of the electoral process.

But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

Even if there were substance to the charge of “undue influence” exercised by those with deep pockets, it would still be outweighed, says Kennedy, citing an earlier case, “by the loss for democratic process resulting from the restrictions upon free and full discussion.” The question of where that discussion might take the country is of less interest than the overriding interest in assuring that it is full and free, that is, open to all and with no exclusions based on a calculation of either the motives or the likely actions of individual or corporate speakers. In this area, the majority insists, the state cannot act paternally. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be schooled by a government that would protect them from sources it distrusts.

Notice how general Kennedy’s rhetoric has become. The specificity of Stevens’s concerns, rooted in the historical record and in the psychology and sociology of political actors, disappears in the overarching umbrella category of “information.” The syllogism is straightforward. Freedom of information is what the First Amendment protects; corporation and unions are sources of information; therefore their contributions — now imagined as wholly verbal not monetary; the conversion is complete — must be protected, come what may.

That, Kennedy is saying, is the Court’s job, to allow the process to go forward unimpeded. It is not the Court’s job to fiddle with the process in an effort to make it fairer or more representative, a point Chief Justice Roberts makes in his concurring opinion when he cites approvingly the Court’s “repudiation,” in Buckley v. Valeo (1976), “of any government interest in ‘equalizing the relative ability of individuals and groups to influence the outcomes of elections.’” Equality may be a good thing; it might be nice if no one had a disproportionate share of influence; but it’s not our job to engineer it. Let the market sort it out.

The majority’s reasoning reaches back to a famous pronouncement by Oliver Wendell Holmes, who acknowledges in Gitlow v. New York (1925) that there are forms of discourse, which, if permitted to flourish, might very well bring disastrous results. Nevertheless, he says, “If in the long run the beliefs expressed . . . are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Holmes’s fatalism — let everyone speak and if the consequences are bad, so be it — stands in contrast to the epistemological optimism of Justice Brandeis who believes that if the marketplace is allowed to be completely open bad speech will be exposed and supplanted by good speech (a reverse Gresham’s law): “The remedy to be supplied is more speech, not enforced silence” (Whitney v. California, 1927). Both justices reject state manipulation of the speech market , one because he is willing to take what comes — it is Holmes who said that if his fellow countrymen wanted to go to hell in a hand-basket, it was his job to help them — the other because he believes that what will come if speech is unfettered will be good.

The justices in the Citizens United majority are more in the Brandeis camp. They believe that free trade in ideas with as many trading partners as wish to join in will inevitability produce benign results for a democratic society. And since their confidence in these results is a matter of theoretical faith and not of empirical or historical observation — free speech is for them a religion with long-term rewards awaiting us down the road — they feel no obligation to concern themselves with short-term calculations and predictions.

Stevens also values robust intellectual commerce, but he believes that allowing corporate voices to have their full and unregulated say “can distort the ‘free trade in ideas’ crucial to candidate elections.” In his view free trade doesn’t take care of itself, but must be engineered by the kind of restrictions the majority strikes down. The marketplace of ideas can become congealed and frozen; the free flow can be impeded, and when that happens the only way to preserve free speech values is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again. Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.”

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

The majority’s purity of principle is somewhat alloyed when it upholds the disclosure requirements of the statute it is considering on the reasoning that the public has a right to be informed about the identity of those who fund a corporation’s ads and videos. “This transparency enables the electorate to make informed decisions.”

Justice Thomas disagrees. The interest “in providing voters with additional relevant information” does not, he says, outweigh “’the right to anonymous speech.’” The majority’s claim that disclosure requirements do not prevent anyone from speaking is, Thomas declares, false; those who know that their names will be on a list may refrain from contributing for fear of reprisals and thus be engaged in an act of self-censoring. The effect of disclosure requirements, he admonishes, is “to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.

dksuddeth · 02-03-2010, 02:01 PM

Quote:

Originally Posted by Baraka_Guru

Well, if the Constitution isn't a living document and if it cannot be actively interpreted by a judiciary, then I would say that it is an inherently flawed and dysfunctional document, especially when you consider how unclear and sometimes misleading the language is. America needs to amend the hell out of it.

please explain why? When it was first ratified, it was designed to protect the rights of the individual. What has changed since then that it should have the hell amended out of it?

Quote:

Originally Posted by Baraka_Guru

If this same document were to be presented today as a nation's proposed constitution, what do you think people would say about it?

I can't speak for anyone else, but for me I'd say that every article, clause, paragraph, and amendment in the bill of rights should have the disclaimer added to it that there is no room for interpretation of ideological reasoning. If it's not written exactly in the statement, then it cannot be assumed.

Baraka_Guru · 02-03-2010, 02:09 PM

Quote:

Originally Posted by Cynthetiq

This explains this discussion better than I have seen elsewhere.

Fish delivers again. Thanks for the post, Cyn.

Quote:

Originally Posted by dksuddeth

please explain why? When it was first ratified, it was designed to protect the rights of the individual. What has changed since then that it should have the hell amended out of it?

Well, nothing has changed with the document itself, I suppose, with the exception of amendments. The problem is that the document isn't very well written when you consider how widely it has been interpreted. There is one thing I can say with confidence about the American Constitution: one cannot always say, "the Constitution says so with no uncertain terms." As far as its function, that hasn't changed either. It is designed to protect the individual and to limit the powers of government. At the same time, its intent is not to render government powerless.

What has changed is that it is becoming increasingly difficult to protect the interests of the individual in a world of increasing complexity, abstraction, and mass communication (not to mention duplicity).

Quote:

Originally Posted by dksuddeth

I can't speak for anyone else, but for me I'd say that every article, clause, paragraph, and amendment in the bill of rights should have the disclaimer added to it that there is no room for interpretation of ideological reasoning. If it's not written exactly in the statement, then it cannot be assumed.

But this is the problem and the point of my previous post. It isn't always clear what exactly is meant in the writing.

roachboy · 02-03-2010, 02:15 PM

Quote:

I can't speak for anyone else, but for me I'd say that every article, clause, paragraph, and amendment in the bill of rights should have the disclaimer added to it that there is no room for interpretation of ideological reasoning. If it's not written exactly in the statement, then it cannot be assumed.

you mean this in the way that "i am saying that..." can be tacked on to any sentence you say, right?

what does "ideological reasoning" mean?

dksuddeth · 02-03-2010, 02:21 PM

Quote:

Originally Posted by Baraka_Guru

Well, nothing has changed with the document itself, I suppose, with the exception of amendments. The problem is that the document isn't very well written when you consider how widely it has been interpreted.

When it was first written and the various speakers went about the colonies explaining the whole thing, NOTHING was ever refuted, NOTHING. Everyone who read the various commentaries knew what it was about. It only became muddled after the fact by ideological politicians with agendas. Alien and Sedition Acts as a case in point.

Quote:

Originally Posted by Baraka_Guru

There is one thing I can say with confidence about the American Constitution: one cannot always say, "the Constitution says so with no uncertain terms." As far as its function, that hasn't changed either. It is designed to protect the individual and to limit the powers of government. At the same time, it's intent is not to render government powerless.

When the phrases of 'shall make no law', 'shall not be infringed', 'no warrant shall', and others like it can't be understood to mean it shall not be done, the rest of it is meaningless. And it doesn't render the government powerless. It prescribes very specific powers, but that's it. Those powers aren't supposed to ebb and flow because the government feels it can't do something it wasn't supposed to, but feels the need to.

Quote:

Originally Posted by Baraka_Guru

What has changed is that it is becoming increasingly difficult to protect the interests of the individual in a world of increasing complexity, abstraction, and mass communication.

The government was charged with protecting the rights of the people, nothing more, nothing less. That's not that hard to do.

Quote:

Originally Posted by Baraka_Guru

But this is the problem and the point of my previous post. It isn't always clear what exactly is meant in the writing.

all the commentaries about it during ratification suggest otherwise.

---------- Post added at 04:21 PM ---------- Previous post was at 04:16 PM ----------

Quote:

Originally Posted by roachboy

you mean this in the way that "i am saying that..." can be tacked on to any sentence you say, right?

what does "ideological reasoning" mean?

ideological reasoning.....like deciding that the commerce clause can be used to regulate whether someone can grow a dozen roses or tulips in their backyard because it affects the interstate market for roses or tulips. You and I both know that there is no way in absolute hell that the framers wanted the feds to have that kind of power with the commerce clause.

Baraka_Guru · 02-03-2010, 02:31 PM

Quote:

Originally Posted by dksuddeth

When it was first written and the various speakers went about the colonies explaining the whole thing, NOTHING was ever refuted, NOTHING. Everyone who read the various commentaries knew what it was about. It only became muddled after the fact by ideological politicians with agendas. Alien and Sedition Acts as a case in point.

What was the literacy rate in the colonies back then? The education level? Did everyone get the communication? You do know how difficult it was to pass on information back then compared to now, right?

Do you think that the Constitution in its current form if presented today would have such widespread acceptance and lack of confusion surrounding its language?

As far as nothing being refuted, I find that rather suspect. I've always found American history intriguing. I should have studied it more.

Quote:

When the phrases of 'shall make no law', 'shall not be infringed', 'no warrant shall', and others like it can't be understood to mean it shall not be done, the rest of it is meaningless. And it doesn't render the government powerless. It prescribes very specific powers, but that's it. Those powers aren't supposed to ebb and flow because the government feels it can't do something it wasn't supposed to, but feels the need to.

The questions aren't about the language constructions you quoted above, the questions are about what "it" is they're referring to. One could say that the document is flawed by how confusing it is. It makes "shalt not" the default position based on not being fully sure what government "shall" or "shalt not" do exactly.

Quote:

The government was charged with protecting the rights of the people, nothing more, nothing less. That's not that hard to do.

Not hard to do? You make it sound easy: "Hey, just protect the rights of the people, okay?" Um...what, wait! How, exactly? You have gravely oversimplifed this matter.

Quote:

all the commentaries about it during ratification suggest otherwise.

I haven't read the commentaries. Can the commentaries be used in interpreting the constitution?

rahl · 02-03-2010, 02:57 PM

Quote:

Originally Posted by dksuddeth

When the phrases of 'shall make no law', 'shall not be infringed', 'no warrant shall', and others like it can't be understood to mean it shall not be done, the rest of it is meaningless. And it doesn't render the government powerless. It prescribes very specific powers, but that's it. Those powers aren't supposed to ebb and flow because the government feels it can't do something it wasn't supposed to, but feels the need to.

.

I'm going to make a few assumptions here, so if I'm wrong please correct me. I assume that the supreme court justices are pretty smart people. I also assume that they understand their role in govn't, which is to interpret law and the constitution.
I also assume that you are a pretty smart person, but not a supreme court justice, if you happen to be one then ok fine, but please explain to me why your opinion should trump the highest court in the land?

I'm sure that at some point, each justice has most likely read all the papers you are referring to.

dksuddeth · 02-03-2010, 03:17 PM

Quote:

Originally Posted by rahl

I'm going to make a few assumptions here, so if I'm wrong please correct me. I assume that the supreme court justices are pretty smart people. I also assume that they understand their role in govn't, which is to interpret law and the constitution.
I also assume that you are a pretty smart person, but not a supreme court justice, if you happen to be one then ok fine, but please explain to me why your opinion should trump the highest court in the land?

I'm sure that at some point, each justice has most likely read all the papers you are referring to.

remember this phrase.....'power corrupts, absolute power corrupts absolutely'.

Now, Are the USSC justices smart people? I would assume so since almost every USSC justice has been to law school and been a lawyer. One shouldn't assume that they understand their role in govt. Some probably have, while some have probably salivated at the opportunity to make long standing federal policy. Their role should be to interpret the laws as written, compared to the plain text of the constitution, then decide if those written laws violate the plain text of the constitution. When you allow those justices to also interpret the constitution, you end up with tortured variations of the constitution so that you end up with rulings that you end up with 'public use' being defined as 'increasing the tax base of a community', such as we ended up with the Kelo decision. Had those justices NOT 'interpreted' the constitution, but ruled along the plain text, there is no possible way that 'public use' could be interpreted to mean 'stealing private property, handing it over to another private entity for development, and then calling it public use because it increases tax revenue'.

Where 'we the people' messed up was allowing that bullshit to go unpunished. When a decision is handed down, and we the people know damned well that it violates the constitution, we should have pushed for an impeachment of those justices. Why did we not? I would assume that most of us are at least intelligent enough to read the constitution and understand it, right?

for example, we passed the 14th Amendment to insure that all recently freed slaves enjoyed all the rights of US citizenship, correct? yet when us v cruikshank was ruled upon in direct contravention of the 14th Amendment, because those judges were racist, we didn't act and we should have.

Of course, i'm sure that some people will say that impeaching justices for bad rulings sets bad precedent or some such thing. But isn't changing or ignoring the will of the people in effect treason?

power corrupts, absolute power corrupts absolutely.

we should not let those we put in to positions of power and authority abuse that trust.

rahl · 02-03-2010, 03:31 PM

Quote:

Originally Posted by dksuddeth

remember this phrase.....'power corrupts, absolute power corrupts absolutely'.

Now, Are the USSC justices smart people? I would assume so since almost every USSC justice has been to law school and been a lawyer. One shouldn't assume that they understand their role in govt. Some probably have, while some have probably salivated at the opportunity to make long standing federal policy. Their role should be to interpret the laws as written, compared to the plain text of the constitution, then decide if those written laws violate the plain text of the constitution. When you allow those justices to also interpret the constitution, you end up with tortured variations of the constitution so that you end up with rulings that you end up with 'public use' being defined as 'increasing the tax base of a community', such as we ended up with the Kelo decision. Had those justices NOT 'interpreted' the constitution, but ruled along the plain text, there is no possible way that 'public use' could be interpreted to mean 'stealing private property, handing it over to another private entity for development, and then calling it public use because it increases tax revenue'.

Where 'we the people' messed up was allowing that bullshit to go unpunished. When a decision is handed down, and we the people know damned well that it violates the constitution, we should have pushed for an impeachment of those justices. Why did we not? I would assume that most of us are at least intelligent enough to read the constitution and understand it, right?

for example, we passed the 14th Amendment to insure that all recently freed slaves enjoyed all the rights of US citizenship, correct? yet when us v cruikshank was ruled upon in direct contravention of the 14th Amendment, because those judges were racist, we didn't act and we should have.

Of course, i'm sure that some people will say that impeaching justices for bad rulings sets bad precedent or some such thing. But isn't changing or ignoring the will of the people in effect treason?

power corrupts, absolute power corrupts absolutely.

we should not let those we put in to positions of power and authority abuse that trust.

To me this seems overly cynical. Obviously ALL people are susceptible to corruption, but that doesn't mean ALL people have been corupted when in positions of power. I understand your position on the literal wording of the document, but the literal wording could not possibly account for all possible situations hundreds of years in the future.

dksuddeth · 02-03-2010, 03:41 PM

Quote:

Originally Posted by rahl

To me this seems overly cynical. Obviously ALL people are susceptible to corruption, but that doesn't mean ALL people have been corupted when in positions of power. I understand your position on the literal wording of the document, but the literal wording could not possibly account for all possible situations hundreds of years in the future.

but therein lies the problem with the way people think.....or not think for that matter. Back then, the people knew that THEY were in control and if THEY needed to change things in the constitution, then they did. Nowadays, people are lazy, stupid, and apathetic. Instead of thinking and doing for themselves, they just want government to handle it. That attitude is what has allowed the government to control our lives instead of us controlling theirs. We need to take that back from them if we want to remain free.

rahl · 02-03-2010, 03:53 PM

Quote:

Originally Posted by dksuddeth

but therein lies the problem with the way people think.....or not think for that matter. Back then, the people knew that THEY were in control and if THEY needed to change things in the constitution, then they did. Nowadays, people are lazy, stupid, and apathetic. Instead of thinking and doing for themselves, they just want government to handle it. That attitude is what has allowed the government to control our lives instead of us controlling theirs. We need to take that back from them if we want to remain free.

But at the time there were only 13 colonies and 2.5 million people. Things are considerably different now, so a document that served well for that situation doesn't serve as well with the present circumstances, IMHO.

dksuddeth · 02-03-2010, 03:54 PM

Quote:

Originally Posted by Baraka_Guru

I haven't read the commentaries. Can the commentaries be used in interpreting the constitution?

They can be read to understand the intent of the framers.

Founders' Constitution: Table of Contents

Derwood · 02-03-2010, 03:55 PM

If the text of the Constitution is so clear and plain and obvious in its intentions, then why do you keep invoking the federalist papers et al to support your assertions?

It's because many part of it ARE unclear, not plain, and not obvious, thus the widely varying interpretations

dksuddeth · 02-03-2010, 03:55 PM

Quote:

Originally Posted by rahl

But at the time there were only 13 colonies and 2.5 million people. Things are considerably different now, so a document that served well for that situation doesn't serve as well with the present circumstances, IMHO.

then we must decide, do we want to maintain control of our country, government, and most of all our freedom, or do we say that there are too many idiots in the nation now, therefore we need the government to tell us what to do?

I would prefer the former, myself.

Derwood · 02-03-2010, 03:59 PM

Quote:

Originally Posted by dksuddeth

then we must decide, do we want to maintain control of our country, government, and most of all our freedom, or do we say that there are too many idiots in the nation now, therefore we need the government to tell us what to do?

I would prefer the former, myself.

Your perception of freedom isn't the norm. I live my life day to day and don't feel like the government is impinging on my life, liberty or pursuit of happiness whatsoever. I think many, many Americans feel the same way. I'm not sure what misery the government is putting you through that you feel so strongly about it

rahl · 02-03-2010, 04:05 PM

Quote:

Originally Posted by dksuddeth

then we must decide, do we want to maintain control of our country, government, and most of all our freedom, or do we say that there are too many idiots in the nation now, therefore we need the government to tell us what to do?

I would prefer the former, myself.

My, nor anyone else that I've ever know, has had their country, govn't or their freedeom out of their control. I maintain control by excersising my right to vote. Remember that we are a representative democracy, not a majority rule. So there will inevitably be people who are disapointed, but thats what we were founded as.

dksuddeth · 02-03-2010, 06:16 PM

Quote:

Originally Posted by Derwood

Your perception of freedom isn't the norm. I live my life day to day and don't feel like the government is impinging on my life, liberty or pursuit of happiness whatsoever. I think many, many Americans feel the same way. I'm not sure what misery the government is putting you through that you feel so strongly about it

my right to carry a gun for self protection is infringed every day by the requirement of a license to carry concealed, which I refuse to pay for. This was done by majority rule. YOU may not feel like the government is impinging on any of your rights, but I feel it everyday.

---------- Post added at 08:16 PM ---------- Previous post was at 08:13 PM ----------

Quote:

Originally Posted by rahl

My, nor anyone else that I've ever know, has had their country, govn't or their freedeom out of their control. I maintain control by excersising my right to vote. Remember that we are a representative democracy, not a majority rule. So there will inevitably be people who are disapointed, but thats what we were founded as.

to protest or demonstrate against the government in public, a street or sidewalk whos construction and maintenance was paid for by your tax dollars, what do you have to obtain?

Derwood · 02-03-2010, 06:20 PM

true. I hate guns, will never own one, and don't give a shit about whether you can carry one without a license or not. you win on that particular point

Willravel · 02-03-2010, 06:24 PM

Apparently the Supreme Court overturned a ban on direct corporate spending on elections. I should start a thread about it.

rahl · 02-03-2010, 06:34 PM

Quote:

Originally Posted by Willravel

Apparently the Supreme Court overturned a ban on direct corporate spending on elections. I should start a thread about it.

My bad

02-02-2010, 12:51 PM	#162 (permalink)
roachboy Super Moderator Location: essex ma	well wouldn't the point of the rhetorical construct of natural law be to give you recourse to a standard or idea of a standard that's not identical with the existing legal system so that you could argue a case such as dk's? and there need be no agreement that the "natural law" that was referred to actually existed---it's more a normative thing, an idea. such things move around over time with the what they're used to oppose. it's kinda hard to figure out what natural law could possibly be outside of a religious framework. lots of folk have tried to put it somewhere, say what it is. it hasn't worked out so well. but as one of a set of rhetorical tools that can be used to criticize or challenge an existing system or law, it's a useful fiction. there are others which are probably as or more useful for thinking about stuff. but pragmatically, since you have the idea of natural law built into the constitution itself (as an effect but no matter) i can see the appeal of using the term. i can't see the appeal of claiming that there is natural law or that (within a religious framework) if there is one that human types know what it is. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

02-02-2010, 01:24 PM	#164 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	So the judiciary can NEVER limit the rights of the Constitution for the common good? __________________ "You can't shoot a country until it becomes a democracy." - Willravel

02-03-2010, 12:47 PM	#179 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	and he's just (about) not going to take it anymore! __________________ "You can't shoot a country until it becomes a democracy." - Willravel

02-03-2010, 01:32 PM	#180 (permalink)
Baraka_Guru warrior bodhisattva Super Moderator Location: East-central Canada	Well, if the Constitution isn't a living document and if it cannot be actively interpreted by a judiciary, then I would say that it is an inherently flawed and dysfunctional document, especially when you consider how unclear and sometimes misleading the language is. America needs to amend the hell out of it. If this same document were to be presented today as a nation's proposed constitution, what do you think people would say about it? __________________ Knowing that death is certain and that the time of death is uncertain, what's the most important thing? —Bhikkhuni Pema Chödrön Humankind cannot bear very much reality. —From "Burnt Norton," Four Quartets (1936), T. S. Eliot

02-03-2010, 03:55 PM	#193 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	If the text of the Constitution is so clear and plain and obvious in its intentions, then why do you keep invoking the federalist papers et al to support your assertions? It's because many part of it ARE unclear, not plain, and not obvious, thus the widely varying interpretations __________________ "You can't shoot a country until it becomes a democracy." - Willravel

02-02-2010, 01:52 PM	#168 (permalink)
ratbastid Darth Papa Location: Yonder	Ah. I gotcha.

02-03-2010, 11:56 AM	#178 (permalink)
ratbastid Darth Papa Location: Yonder	You've come up against the end of the conversation with dksuddeth on this one, gents. He's a Strict Constructionist true believer, and he's as religious about it as the Pope.

02-03-2010, 06:20 PM	#198 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	true. I hate guns, will never own one, and don't give a shit about whether you can carry one without a license or not. you win on that particular point __________________ "You can't shoot a country until it becomes a democracy." - Willravel

02-03-2010, 06:24 PM	#199 (permalink)
Willravel ... a sort of licensed troubleshooter.	Apparently the Supreme Court overturned a ban on direct corporate spending on elections. I should start a thread about it.