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

[Jeff Matthews]

Here's another passage from the article:

 

"Given that the Founders hoped the Constitution would endure for generations, it is much more plausible to infer that what they intended was to establish the principle that the government may not impose any punishment that, given the circumstances of the time, is considered cruel and unusual. That's why they used the open-ended language. As indicated by the minimum age requirement for the presidency and numerous other provisions, when the Founders wanted to be very precise, they had no trouble doing so. So they could have listed the specific punishments they considered cruel or unusual. Instead they deliberately opted for more general guidance. Likewise with other critical provisions, such as the "due process" clause or the prohibitions on "unreasonable" searches and seizures. They recognized they could not predict the future and they trusted future generations to apply these general principles intelligently, consistent with the underlying objectives of these principles."

 

How hypocritical of the author to criticize Originalism in one breath, and in the second breath, try to ascertain the intent of the drafters.  Such is the practice of law...

[Jim Naseum]

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.

I think already your version of the meaning of the document is a tiny subset of the preamble. 'Securing a more perfect union' in 1790 is no doubt different than in 2015. If intelligent men had intended to simply limit the powers of government, there would be just a long list of 'may nots'.

In the case of it had to advance in ways similar to the other sciences, in order to maximize societies purpose.

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[Jeff Matthews]

 

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.

I think already your version of the meaning of the document is a tiny subset of the preamble. 'Securing a more perfect union' in 1790 is no doubt different than in 2015. If intelligent men had intended to simply limit the powers of government, there would be just a long list of 'may nots'.

In the case of it had to advance in ways similar to the other sciences, in order to maximize societies purpose.

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Of what use is a Constitution without limits on the government?  

 

If you take the time to read it, you will find it is comprised largely of "may," "may not," "shall" and "shall not."  Then, you have the 10th Amendment, which expressly states all powers not granted to the federal government are retained by the States or the people.  That, alone, tells you the Constitution was a limited grant, and not an unlimited one.

 

If you make it "live and breathe," you have to wonder where the limits would then be.  

 

You are arguing in favor of construing it as a document of convenience.  If it is to be such a thing, why even have a document?  Why must authority be found in ink on paper.  If it "lives and breathes," ink on paper would be nothing more than a ruse for whims of the authorities.

Edited February 16, 2016 by Jeff Matthews

[Jim Naseum]

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.

I think already your version of the meaning of the document is a tiny subset of the preamble. 'Securing a more perfect union' in 1790 is no doubt different than in 2015. If intelligent men had intended to simply limit the powers of government, there would be just a long list of 'may nots'.

In the case of it had to advance in ways similar to the other sciences, in order to maximize societies purpose.

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Of what use is a Constitution without limits on the government?

If you take the time to read it, you will find it is comprised largely of "may," "may not," "shall" and "shall not." Then, you have the 10th Amendment, which expressly states all powers not granted to the federal government are retained by the States or the people. That, alone, tells you the Constitution was a limited grant, and not an unlimited one.

If you make it "live and breathe," you have to wonder where the limits would then be.

You are arguing in favor of construing it as a document of convenience. If it is to be such a thing, why even have a document? Why must authority be found in ink on paper. If it "lives and breathes," ink on paper would be nothing more than a ruse for whims of the authorities.

I think the document has to serve the society, not the other way around. Probably what they missed was providing for automatic rewrites every 100 years. Given the amount of argument, contention and compromise involved, I don't regard it with any sacred awe or reverence compared to the needs of the living society. In some sense it has worked well, and in many ways it has failed very badly.

As far as I can see, very few people in politics take it seriously, beyond using it to wrangle their own gain. It's already a 'ruse for authorities'.

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[Jim Naseum]

But again, my point was more to denigrate the concept of people claiming originalism as a serious philosophy. I don't think it can be adopted by the most intelligent minds in a society without doing a lot of harm. That's why we don't have scientists and doctors claiming to follow this idea.

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Edited February 16, 2016 by jo56steph74

[Jim Naseum]

“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.” - Louis Seidman.

 

That's how I see it. The Constitution isn't just a set of laws, it's an instruction book for "securing a more perfect nation." And, it is secular, not sacred. Anyone who adopts this politically hacked compromise document as a religious relic is blocking society from achieving it's goals in order to do nothing more than sanctify some smart, but still very flawed and very dead individuals who no longer are stake holders.

 

I remain, a modernist. 

[Jim Naseum]

Here's an excellent example of the all too typical "constitutional argument." https://consortiumnews.com/2013/01/05/is-the-constitution-still-relevant/

 

This becomes nothing more than debating how many angels can dance on the head of a pin. You can not dissect history successfully in these matters that involve dozens of historical figures. There are simply too many permutations of cause, and there are no judges, or method of scoring. They are pissing contests of petty persons.  In all these arguments, what is never discussed is, "how to secure a more perfect union." Because that goal has no interest in history, or the mythology of the Founders. It is only relevant to current status of things.  

[garyrc]

 

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  

 

 

 

Larry, I know you didn't do this, but the quote attributed to me only contained one thing I included, which was the link to the article in the Huffington Post.  I think there is a glitch somewhere in the Klipsch forum program, because I've seen that happen before, i.e., quotes from different people are mixed well, and attributed to another.

[Jeff Matthews]

“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.” - Louis Seidman.

 

This statement is flawed.  Nobody uses Originalism to preclude what they want.  They use Originalism to support what they want.  Some people still want what Madison wanted.

[Jeff Matthews]

But again, my point was more to denigrate the concept of people claiming originalism as a serious philosophy. I don't think it can be adopted by the most intelligent minds in a society without doing a lot of harm. That's why we don't have scientists and doctors claiming to follow this idea.

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If you don't appreciate the merit of Originalism, you are not fully-developed in your thinking.

 

You are way off-base regarding the comment, "That's why we don't have scientists and doctors claiming to follow this idea."  The law is not science.  It is art.  Art with important consequences.  

 

It's one thing to let the people vote on their laws (presuming you don't care much for individual rights and are fine with majority rule).  It's quite another to let your laws be "living and breathing."  That's the stuff witch-doctors use.  That's the stuff used by the little man behind the curtain.  You have argued countless times against a society in which a small number of oligarchs wield all the power.  Well... where's your argument in favor of a "living, breathing" Constitution leading us?  At least Originalism aims at an objective construction.  "Living, breathing" is carte blanche for our rulers.

[Jeff Matthews]

You can not dissect history successfully in these matters that involve dozens of historical figures. There are simply too many permutations of cause, and there are no judges, or method of scoring. They are pissing contests of petty persons.  In all these arguments, what is never discussed is, "how to secure a more perfect union." Because that goal has no interest in history, or the mythology of the Founders. It is only relevant to current status of things.  

 

If you haven't realized it by now, you are defeating your own argument as you go.  Every criticism you have for Originalism applies to "modernism."

 

When you say Originalists are constrained from arguing what is best for the union, you are missing the boat.  They are arguing what is best. Originalism is their mode of argument.

 

Can you, in 200 words or less, explain how we are better-off with a document that means whatever 5 of 9 justices say it means?  I am a bit baffled that you can decry alleged conspiracies around every turn, but when it comes to what has been labeled a "conservative" view (Originalism is not an exclusive domain to conservatives), you are delighted at the thought a majority of 9 people can simply run away with whatever law they want.

 

By the way, speaking of conspiracies and brain-washing, how on earth did Originalism get branded as only good for ultra-conservatives?  That's a bizarre custom to me.  I see a vast number of applications that would further the interests of leftists and the working class, too.  

 

Heck, look at the War on Drugs.  It's totally Unconstitutional... and I would think Originalism would preclude it.  Check out Article 1, Section 8 and show me where Congress has authority over intrastate (not interstate) use of drugs.

 

So why do you go along with the brain-washed masses and buy into the claim that Originalism thwarts progress?  That's simply a wrong-minded approach.  You should give credit where credit is due, and further you should realize that when the establishment harps against Originalism, there is a reason for that, and the reason is not always in your or my interest.  The reason is because they are power-hungry, and they want to brainwash you into giving them more power than intended.

 

Essentially, your are a conspiracy-theorist who wants to give more power to the conspirators.  Odd indeed.  Not well thought-out.

Edited February 16, 2016 by Jeff Matthews

[Jim Naseum]

But again, my point was more to denigrate the concept of people claiming originalism as a serious philosophy. I don't think it can be adopted by the most intelligent minds in a society without doing a lot of harm. That's why we don't have scientists and doctors claiming to follow this idea.

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If you don't appreciate the merit of Originalism, you are not fully-developed in your thinking.

You are way off-base regarding the comment, "That's why we don't have scientists and doctors claiming to follow this idea." The law is not science. It is art. Art with important consequences.

It's one thing to let the people vote on their laws (presuming you don't care much for individual rights and are fine with majority rule). It's quite another to let your laws be "living and breathing." That's the stuff witch-doctors use. That's the stuff used by the little man behind the curtain. You have argued countless times against a society in which a small number of oligarchs wield all the power. Well... where's your argument in favor of a "living, breathing" Constitution leading us? At least Originalism aims at an objective construction. "Living, breathing" is carte blanche for our rulers.

I think you consider the Constitution just a law, where I consider it an instrument of political science. It formulates a system by which our will progress. Political science moves with time.

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[Jeff Matthews]

Political science moves with time.

 

Political science might move with time, but politics and laws should move with elections and lawful ordinances.   

[Jim Naseum]

But again, my point was more to denigrate the concept of people claiming originalism as a serious philosophy. I don't think it can be adopted by the most intelligent minds in a society without doing a lot of harm. That's why we don't have scientists and doctors claiming to follow this idea.

Sent from my SM-T330NU using Tapatalk

If you don't appreciate the merit of Originalism, you are not fully-developed in your thinking.

You are way off-base regarding the comment, "That's why we don't have scientists and doctors claiming to follow this idea." The law is not science. It is art. Art with important consequences.

It's one thing to let the people vote on their laws (presuming you don't care much for individual rights and are fine with majority rule). It's quite another to let your laws be "living and breathing." That's the stuff witch-doctors use. That's the stuff used by the little man behind the curtain. You have argued countless times against a society in which a small number of oligarchs wield all the power. Well... where's your argument in favor of a "living, breathing" Constitution leading us? At least Originalism aims at an objective construction. "Living, breathing" is carte blanche for our rulers.

As to the oligarchy, that's a direct outcome of the current Constitution. The best measure of the quality of the instrument is to examine the outcome. What we clearly have lacked, and it shows, is the beneficial effects of democracy. The framers wanted a narrow rule by wealthy white men. Why on earth should the 315M in the US today want that?

You continue to project that it's better to be ruled by dead men. I can't agree on any level to that. The only thing that should matter today are the need of the living. Nearly all other developed countries have rewritten their constitutions in the last few generations.

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[Jeff Matthews]

As to the oligarchy, that's a direct outcome of the current Constitution. The best measure of the quality of the instrument is to examine the outcome. What we clearly have lacked, and it shows, is the beneficial effects of democracy. The framers wanted a narrow rule by wealthy white men. Why on earth should the 315M in the US today want that?

 

You continue to project that it's better to be ruled by dead men. I can't agree on any level to that. The only thing that should matter today are the need of the living. Nearly all other developed countries have rewritten their constitutions in the last few generations.

 

You are incorrect on multiple counts. 

 

First, you assume in the first paragraph that in the absence of the Constitution, we would have more power in the hands of the people.  On what basis do you lay claim to the idea that the Constitution doesn't limit the degree of the oligarchy's influence?  If you strip the Constitution of all its constraints on government, it seems that the inevitable result would be to place more power (all of what remains) in the hands of the oligarchs.

 

In your second paragraph, you speak of being ruled by dead men.  I have seen that argument before.  However, that's a bit absurd.  We have things called "elections," and the Constitution has an amendment process built-in.  If we choose not to change anything, we have made our choice.

Edited February 16, 2016 by Jeff Matthews

[Jim Naseum]

Political science moves with time.

Political science might move with time, but politics and laws should move with elections and lawful ordinances.

Example. Before there was a Constitution, there was the Articles of Confederation. This it was determined was a mistake of political science. Next step? A new constitution to correct all that was wrong.

And you need to look no further for continued political science flaws than the embrace of slavery, and the exclusion of women. Wow, what thinkers these were! England had already begun to fight the slave trade.

Supreme Court? Again, that is another instrument of antidemocracy. I have no love of that old idea, which is derived from mythological roots. What's old and outdated is the entire structure. The oligarchy we have is the outcome of the constitution YOU are defending. You can't turn that back on me. Your Originalism owns the current outcome.

Everything about the Old Way is intended to secure the world for elites, and it works. South Dakota has two Senators? Supreme Court appointed for life?

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[Jim Naseum]

Essentially, your are a conspiracy-theorist who wants to give more power to the conspirators. Odd indeed. Not well thought-out.

If that's the best you can do, you are in over your head.

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[Jim Naseum]

As to the oligarchy, that's a direct outcome of the current Constitution. The best measure of the quality of the instrument is to examine the outcome. What we clearly have lacked, and it shows, is the beneficial effects of democracy. The framers wanted a narrow rule by wealthy white men. Why on earth should the 315M in the US today want that?

You continue to project that it's better to be ruled by dead men. I can't agree on any level to that. The only thing that should matter today are the need of the living. Nearly all other developed countries have rewritten their constitutions in the last few generations.

You are incorrect on multiple counts.

First, you assume in the first paragraph that in the absence of the Constitution, we would have more power in the hands of the people. On what basis do you lay claim to the idea that the Constitution doesn't limit the degree of the oligarchy's influence? If you strip the Constitution of all its constraints on government, it seems that the inevitable result would be to place more power (all of what remains) in the hands of the oligarchs.

In your second paragraph, you speak of being ruled by dead men. I have seen that argument before. However, that's a bit absurd. We have things called "elections," and the Constitution has an amendment process built-in. If we choose not to change anything, we have made our choice.

The evidence for elite rule is prima facie.

I'm not arguing for no structure. I'm arguing for a New Constitution. The current amendment process is now almost virtually impossible. See: ERA

Elections have become meaningless owing to the stranglehold of an ossified dualism. After 40 years, the Green party still has zero representation in congress. We are the last advanced country where that is true.

In fact, Originalism has become a sacred mythological cover story concocted in think tanks and slathered with emotional appeals and romanticism. We all know who is served by this, and what they want. And it's not the population, and it's not democracy.

We need a system of deeper plurality that serves the most diverse population on earth. And that's what the majority of political scientist think, too.

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[muel]

Political scientists love government and want more of it.

[Jim Naseum]

Political scientists love government and want more of it.

Actually, it's politicians, not political scientists, who want more government. Think about it.

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