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"Originalism"..............


Jim Naseum

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Imagine that in 1775 the discovery of GERMS was still 75 years in the future! That's one swell aspect of science, it doesn't sit still for hundreds of years. Also in the 1700s it was a common philosophy that animals could not possibly suffer and that any torturous duty, or neglect that men could impose on them was no imposition at all. Come to think of it, thoughtful men reasoned exactly the same about other MEN from other continents. WOW - the smartest men of the day, the acknowledged brilliant stars thought that way. Try to imagine bringing those ideas into 2016, because you know, that's what was known then!

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The Constitution is handled much like the Bible.  Everyone says it's whatever they want it to be.  There is no use in going over this topic.  It's pretty clear that the document is malleable.  How do you get to know the intent of dead men?

 

We have these things we call "elections" that serve as a gauge of what kind of government people want.  There's not much chance we will continue to be ruled by dead men, Constitution or otherwise.

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TeX,

You are commenting on a political process, it seems. I was commenting on human intelligence. Comparing the intelligence of typical medical scientists, or average engineers to those who live by originalism in their field. You could only get by on originalism in a few fields.

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TeX,

You are commenting on a political process, it seems. I was commenting on human intelligence. Comparing the intelligence of typical medical scientists, or average engineers to those who live by originalism in their field. You could only get by on originalism in a few fields.

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There is a difference between law and technology.  Technology can certainly be composed of things which aid jurists, but the actual profession itself is not akin to technology.

 

When applying laws, it is natural to want to know what lawmakers intended by their use of various words and phrases.  It is natural to suggest that the law is as the lawmakers intended it.  The suggestion that prosecutors should have the right to bend and contort and twist the laws in unintended ways in order to convict you is repulsive to a rights-based, or Constitutional, society. 

 

If it "lives and breathes" for liberators, it "lives and breathes" for despots, too.  It is a 2-edged sword.

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jo56steph74, on 15 Feb 2016 - 5:49 PM, said:   oscarsear, on 15 Feb 2016 - 5:06 PM, said: Jerry Springer, Maury Povich and now jo56steph74. Yippy skippy! Gee, nothing to say on the topic? You guys have much angst? Sent from my SM-T330NU using Tapatalk    http://www.huffingto..._b_9237446.html   :emotion-21:

 

Edited by LarryC
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Jerry Springer, Maury Povich and now jo56steph74. Yippy skippy!

Gee, nothing to say on the topic? You guys have much angst?

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http://www.huffingtonpost.com/ronald-a-lindsay/scalia-and-originalism-may_b_9237446.html

Right. It is kind of obvious on the surface that such an idea is more of an affectation, or cover, then a philosophy that warrants serious consideration.

If someone were translating an ancient mythological work, or even work of literature, there is something to be said for simple literalism. A broadsword doesn't mean a machine gun. But in matters of science, and economic and politics are both social sciences, it's just indefensible to serious people.

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The crux of the criticism against Originalism is contained in this quote from the linked article:

 

But the more fundamental flaw is to assume that the Founders wanted us to use detailed historical research, or perhaps necromancy, to discern the specific things they were thinking of at the time they wrote the Constitution. As indicated, Scalia argued that capital punishment cannot be cruel and unusual because it was practiced at the time the Bill of Rights was adopted. However, that assumes that what those who proposed and ratified the Eighth Amendment intended was something such as: "The government cannot utilize punishments considered cruel and unusual at the time of the enactment of this amendment." Where is the justification for this interpretation? There isn't any. There is certainly no justification in the text itself because the Founders did not include the language I italicized--although it would have been easy to do so. The Constitution doesn't have a word limit.

 

The flaw in the criticism above is that the Constitution was a document meant to limit the power of the government, not to give it unlimited power.  If the powers are to be expanded or broadened, there is a built-in amendment process which must be followed.

 

Nobody can rightly argue the drafters intended that, "The government can use any punishments it doesn't consider cruel and unusual."  That would be tyranny - not democracy.

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