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

[muel]

 

 

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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Why do you think they got into political science?  They love the SYSTEMS of politics and can't get enough of it.

 

Wow, you are condescending.

Edited February 16, 2016 by muel

[Jim Naseum]

Why do you think they got into political science? They love the SYSTEMS of politics and can't get enough of it.

Wow, you are condescending.

Finding good systems bears no particular relationship to "more government." A political system can be small or large.

P.S. Why do you suppose you need to insert attempts at personal insults into your posts? Please notice that I don't.

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[Jim Naseum]

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?

 

Yes, I have. That's the system Madison wanted and got, while giving some impression (a ruse) of "popular government."  It was Madison who railed against "factions," which today we call interest groups. his reasoning was simple: factions, whether minority or majority, should never, EVER, be able to trump elite rule. And, that's exactly why we have no Greens in the Congress, to use a common example. 

 

While the USA touts democracy for others, it inhibits it for it's own citizens, as per the Madison design of "eyewash" for the public, and power to the elites. 

 

For accuracy here, I have never used the phrase "living, breathing Constitution" which is a popular strawman of the originalists. My position might better be called "clean slate." 

 

The US Constitution is the second oldest constitution behind only San Marino circa 1600. 

[oldtimer]

The US Constitution is the second oldest constitution behind only San Marino circa 1600

 

For a fairly good reason.  It's not perfect, and the interpretation of it has not been perfect.  The most egregious errors have been corrected, or rather most of them have.  But find a better blueprint (please) for a representative government and we can all jump on the band wagon.  True democracy becomes "mob" or "majority" rule which always leads to oppression of someone.  Benevolent dictatorship of course is the best, except that (other than me of course) benevolent dictators are extremely difficult to find.

[Jim Naseum]

But find a better blueprint (please)

 

 

Cass Sunstein, the most quoted constitutional scholar in the US, is in a position to formulate a reasonable critique, and comparison to other constitutions. Would you agree on that?

[oldtimer]

The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to Sunstein. "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.

 

In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes' conception of free speech as a marketplace “disserves the aspirations of those who wrote America’s founding document.”^[26] The purpose of this reformulation would be to “reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views.”^[27] He is concerned by the present “situation in which like-minded people speak or listen mostly to one another,”^[28] and thinks that in “light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals.”^[29] He proposes a “New Deal for speech [that] would draw on Justice Brandeis' insistence on the role of free speech in promoting political deliberation and citizenship.”^[27] Sunstein's view in effect casts rights as mere means to the ends of whatever sector most fully controls the state as "desirable", amounting in effect to neo-McCarthyist rearrogation of free speech from the realm of inalienable right to state-awarded privilege, earning him severe criticisms (see below); one commenter observed, "...Sunstein is the lead author of a 2009 article, published in the Journal of Political Philosophy, that is so riddled with contradictions, lapses in logic, non-sequiturs, and other apparent absurdities--including the open advocacy of illegal acts by government officials, and the suggestion that it may one day be necessary to repeal the First Amendment and ban 'conspiracy theories'--that it would likely flunk its author out of Political Philosophy 101."

 

 

I'm not all that impressed so far.

[Jim Naseum]

Well, as the most quoted scholar on the Constitution, I accept that he has some background on the subject. You asked for a "better blueprint (please)" and I doubt if you would accept my credentials, would you? But now, you seem to also not accept the top scholar either. So, one can't even imagine who you think is qualified to speak to the issue?

 

Be that as it may, and as unrealistic as it is, I think Sunstein made some very interesting comments as follows:"Cass Sunstein said that the South African Constitution is "the most admirable constitution in the history of the world."

 

Quote

South Africa adopted its constitution in 1996. That year, the Constitutional Court issued the Second Certification Judgment, ruling that the Constitution complied with the thirty-four Constitutional Principles agreed upon in political negotiations that took place from 1991 to 1993. The new Constitution embodied the nation's transformation from a racist, brutal, Apartheid-based regime to a democratic, multi-cultural government. Both the Constitution's length and detail distinguish it from the United States Constitution.

The South African Constitution establishes a parliamentary structure for the national government and allocates powers to the provincial governments. It also creates a Constitutional Court with eleven Justices who are appointed to serve twelve-year non-renewable terms. The first group of Justices was impressive as it included an international war crimes prosecutor, several former law professors, and the attorney who founded the nation's leading civil rights litigation firm and represented President Nelson Mandela during his imprisonment.

The South African Constitution's Bill of Rights seeks to preserve and enhance human dignity, and substantive equality, by encompassing all three generations of rights previously discussed. Whereas the United States Supreme Court implies the existence of certain fundamental personal rights in the liberty provision of the Fourteenth Amendment's Due Process Clause (a legacy of Lochner v. New York), the South African Bill of Rights specifically enumerates these rights. Section 12 of the Bill of Rights addresses the "freedom and security of the person." This section specifically bans torture, cruel and inhumane treatment, general violence, detention without trial, and deprivation of freedom without just cause. It further provides that everyone has bodily and psychological integrity, including the right to make reproductive decisions. Section 14 encompasses the right to spatial privacy: privacy in one's home, of one's possessions, etc. Section 21 guarantees freedom of movement and residence. There is a lengthy equality provision in Section 9, Section 10 protects human dignity, and Section 11 says that everyone has a right to life.

The South African Bill of Rights also employs the flexible proportionality analysis used in the Canadian Charter of Rights and Freedoms and in Germany's Basic Law, rather than the tiers of scrutiny applied in United States constitutional jurisprudence. The first issue addressed in any South African rights case is whether there has been an infringement of one's constitutional rights. Interestingly, state action need not always be present. The next issue addressed is whether the Bill of Rights "Limitations" Clause justifies the infringement. Any limitation must be pursuant to a law of "general application." The Limitations Clause requires the Court to balance several factors, including the nature of the right, the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and the possibility of employing less restrictive alternatives. The Court's overall responsibility is to determine whether the infringement on the right is proportional to the resulting societal benefit. This method of rights analysis is more common internationally than the American use of different degrees of scrutiny.

END

 

The whole piece is located here:http://academic.udayton.edu/Race/06hrights/GeoRegions/Africa/Safrica03.htm

 

When I speak of modernism and of political science moving FORWARD, I mean such ideas as this:

Quote

One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. The theory is that liberty at least presumes subsistence.

International human rights experts actually speak of three "generations" of rights. First generation rights are political and civil, and are usually negative rights. Second generation rights involve the government's socio-economic obligations, and are frequently positive rights. Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called "green" rights.

 

End Quote

 

You can not get to any such philosophy under the idea of "originalism."

[oldtimer]

Maybe I would maybe I wouldn't.  Give me some time since I'm not familiar with the SA constitution.

[fuzzydog]

I'll just add my 0.02 for what it's worth.  

 

From the Declaration of Independence:

 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

 

I think it is key to remember that the founders believed that our basic rights are god given, they are not granted by the government, but they can be secured by the government.  They subsequently wrote the constitution in such a way that it would serve to secure these rights.  

 

I'm not sure why anyone would want to interpret the constitution in any way other than its original intent to protect their individual rights.  

[oldtimer]

The problem is the d of i is not a legally binding document. The constitution is.  Anything in the d of i is correct in spririt, but completely  ignorable in court.

[Jim Naseum]

The Declaration of Independence was written in 1776. 

 

 

13 years later, the Constitution was written and begins with a markedly different premise:

 

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

 

We have no Creator in this process. I think the preamble is remarkably clear.

[Jim Naseum]

This idea of "securing a more perfect union" is where blue prints are crucial, and must stand up to the construct that evolves from the plan. If you make a beautiful blue print, but the building collapses in short order, you were NOT a good architect. 

 

My argument is simple: Modern buildings are created from modern design principles. We no longer build pyramids, right? We build skyscrapers thousands of feet high, and such a design could not be imagined by the engineers of 1790. 

 

Political science, is none the less a science. That's how the SA Constitution of 1996 seems elegantly better than ours. Nope, I have no idea how their society will evolve. But, I can see that ours has evolved as very crippled in many ways. My objective is always to advocate fixing it. 

[fuzzydog]

My point is that an originalist would interpret the constitution within the context of the declaration of independence.  

[Jim Naseum]

My point is that an originalist would interpret the constitution within the context of the declaration of independence.  

 

But the Constitution didn't even hold that "all men are created equal." And for dang sure the Founders (half of them slaveholders) didn't believe that either. So, just at the gitgo, you have a non-starter. I won't even get to the point that they never intended a theocracy. 

[oldtimer]

I won't even get to the point that they never intended a theocracy

 

Well duh....

[Jim Naseum]

 

I won't even get to the point that they never intended a theocracy

 

Well duh....

 

 

It wasn't however, a "duh" for Fuzzydog: "the founders believed that our basic rights are god given,"

[oldtimer]

OK but it's a stretch from god given (as opposed to monarchy given) to out and out theocracy. 

[Jim Naseum]

I repeat this, because it is a powerful reminder of what modernist might mean in political sciences:

 

International human rights experts actually speak of three "generations" of rights. First generation rights are political and civil, and are usually negative rights. Second generation rights involve the government's socio-economic obligations, and are frequently positive rights. Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called "green" rights.

 

Such a view was unknown by Enlightenment thinkers of the 18th century. 

[Jim Naseum]

OK but it's a stretch from god given (as opposed to monarchy given) to out and out theocracy. 

\

Yes, it is. No problem. I spoke too generally,.

[Jeff Matthews]

This idea of "securing a more perfect union" is where blue prints are crucial, and must stand up to the construct that evolves from the plan. If you make a beautiful blue print, but the building collapses in short order, you were NOT a good architect. 

 

My argument is simple: Modern buildings are created from modern design principles. We no longer build pyramids, right? We build skyscrapers thousands of feet high, and such a design could not be imagined by the engineers of 1790. 

 

Political science, is none the less a science. That's how the SA Constitution of 1996 seems elegantly better than ours. Nope, I have no idea how their society will evolve. But, I can see that ours has evolved as very crippled in many ways. My objective is always to advocate fixing it. 

 

Haha. You can spend an hour (or less) reading about the South African Constitution and come out with knowledge that it works better than ours.  Haha.