pat Buchanan has a good piece on judges

#76
#76
hndog609 said:
Slander (we can go ahead and put libel in there too) is nothing more than the malicious harming of others that happens to fall under the purview of speech. Such malice is not and should not be protected any more than any other deliberate or reckless act that causes harm. Hell, it's not like the idea of defamation didn't precede the Constitution. I don't think this argument advances your position much.

And while we're on the topic let's not be at cross purpose. I've never posited that there aren't limitations out there. (speech or otherwise) My point has been sometimes, as in the case of the "yell fire" example, interpretations can get pretty lazy (again, that little quip has taken a severe beating) or even somewhat WTF. Keeping an eye toward strict interpretation lessens the ability and scope of what people call "legislating from the bench" and that's fine with me. Precedent is a damned dangerous thing and anything that keeps "personal" interpretations on a short leash is almost always for the better in my book. Beyond that you'd have to be drilling down deep in very specific case by case examples.
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The funny part is that real tyranny comes from having no real clear concept of what is acceptable, and potentially having every action held hostage for someone in a black robe to interpret and divine as permissible or impermissible behavior.

At least if something is codified by a legislative body, it is a basis and can be accepted or challenged and modified - a process by elected representatives falling in the branch of government with the charter to actually make law.
 
#77
#77
ClearwaterVol said:
I'm your hukleberry.

There are two basic ways to interpret the constitution which both have advantages and disadvantages. You can be an originalist (dead document) or a non-originalist (living breathing document).

An originalist believes that the meaning of the constitution is frozen in time. You may disagree on the interpretation of words, but may not apply the constitution to situations which were not considered by the original drafters.

An non-originalist believes in applying the constitution to situations not considered by the drafters. You are still bound by the words on the page, but you can apply the words to situations that may not have even existed or have been contemplated by the drafters.

The problems arise, at least in my mind, because judges bounce back and forth between the two methods of interpretation when the circumstances present themselves. Like most people judges reach decisions and then try to contort the facts and analysis so that they can reach their predetermined decision.

There are advantages and disadvantages of both view points. For instance, if we consider the constitution a contract with the people the originalist view point is more faithful to that concept. Non-originalists will point out that the framers indicated that they didn't want their intent to be part of the analysis and that non-originalism allows the constitution to evolve to address situations that currently exist.

I am a non-originalist. As to Roe v. Wade, I agree with the result. The right to privacy is not mentioned in the constitution, however the 14th Amendments right to life, liberty and property has been as far back as the late 1800s been interpreted as granting a right to privacy. The court found that this right was broad enough to include a woman's right to choose to abort her fetus. The court recognized that the right was not absolute and that at some point in the pregnancy the unborn's rights would trump that of the mothers.
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One major flaw in your post here...

Who gets to decide what's covered under the Constitution vis–à–vis what isn't in your non-originalist concept. Take the 2nd Amendment for example. You could say the 2nd Amendment doesn't cover high capacity magazines and that was something unforeseen by the Founding Fathers. Hence, the SCOTUS could make them illegal as it's a living breathing document. Or automatic pistols. Or auto loading rifles. Hell, even a two shot derringer wasn't around when the Constitution was created, hence, they can make everything illegal firearms wise except single shot, flintlock rifles and pistols.

Doesn't exactly sound reasonable does it?

You correctly pointed out the fact justices will twist the words to achieve their (emphasis on their) desired outcome. And to me, that's not what the framers had in mind. We two ways of covering said situations that were not covered by the Founding Fathers:

10th Amendment

Article 5, which we've used 17 times since the nation was founded.

If New York decides high capacity magazines aren't for them, they can invoke the 10th Amendment since it isn't technically covered under the 2nd. And the SCOTUS can't really say they are wrong since that right is reserved to the States and, by proxy, the people that elect said representatives in each State. And this is why, at least in my opinion, you won't ever see a challenge to the magazine bans reach the SCOTUS level. It wasn't envisioned, but the States took care of the matter themselves by covering it later. Now I do not agree on any kind of firearms ban or restriction since the 2nd has broad language of "arms" instead of specifics. And that's something non-originalists, as you stated, will twist to fit their political leanings. You'll get some that argue the comma isn't meaningful. Well, it's there for a reason isn't it? But different debate, different time.

I guess if you get down to brass tacks, I'm an originalist. I think the interpretation used in Roe v. Wade wasn't correct in regards to the "fundamental right" portion. It's not an enumerated right under the Constitution and the use of the 14th Amendment was incorrect in my oh so humble and not extensive legal expertise. The right to privacy is one thing and that's not under question. The fundamental right over a fetus isn't since I'm of the believe it takes two to tango and both parents should be concurring in the abortion decision.
 
#78
#78
Grand Vol said:
One major flaw in your post here...

Who gets to decide what's covered under the Constitution vis–à–vis what isn't in your non-originalist concept. Take the 2nd Amendment for example. You could say the 2nd Amendment doesn't cover high capacity magazines and that was something unforeseen by the Founding Fathers. Hence, the SCOTUS could make them illegal as it's a living breathing document. Or automatic pistols. Or auto loading rifles. Hell, even a two shot derringer wasn't around when the Constitution was created, hence, they can make everything illegal firearms wise except single shot, flintlock rifles and pistols.

Doesn't exactly sound reasonable does it?

You correctly pointed out the fact justices will twist the words to achieve their (emphasis on their) desired outcome. And to me, that's not what the framers had in mind. We two ways of covering said situations that were not covered by the Founding Fathers:

10th Amendment

Article 5, which we've used 17 times since the nation was founded.

If New York decides high capacity magazines aren't for them, they can invoke the 10th Amendment since it isn't technically covered under the 2nd. And the SCOTUS can't really say they are wrong since that right is reserved to the States and, by proxy, the people that elect said representatives in each State. And this is why, at least in my opinion, you won't ever see a challenge to the magazine bans reach the SCOTUS level. It wasn't envisioned, but the States took care of the matter themselves by covering it later. Now I do not agree on any kind of firearms ban or restriction since the 2nd has broad language of "arms" instead of specifics. And that's something non-originalists, as you stated, will twist to fit their political leanings. You'll get some that argue the comma isn't meaningful. Well, it's there for a reason isn't it? But different debate, different time.

I guess if you get down to brass tacks, I'm an originalist. I think the interpretation used in Roe v. Wade wasn't correct in regards to the "fundamental right" portion. It's not an enumerated right under the Constitution and the use of the 14th Amendment was incorrect in my oh so humble and not extensive legal expertise. The right to privacy is one thing and that's not under question. The fundamental right over a fetus isn't since I'm of the believe it takes two to tango and both parents should be concurring in the abortion decision.
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The 2nd Amendment isn't under attack. The Ist amendment has been under attack since 1/20/ '17. :question:
 
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#79
#79
Grand Vol said:
One major flaw in your post here...

Who gets to decide what's covered under the Constitution vis–à–vis what isn't in your non-originalist concept. Take the 2nd Amendment for example. You could say the 2nd Amendment doesn't cover high capacity magazines and that was something unforeseen by the Founding Fathers. Hence, the SCOTUS could make them illegal as it's a living breathing document. Or automatic pistols. Or auto loading rifles. Hell, even a two shot derringer wasn't around when the Constitution was created, hence, they can make everything illegal firearms wise except single shot, flintlock rifles and pistols.

Doesn't exactly sound reasonable does it?

You correctly pointed out the fact justices will twist the words to achieve their (emphasis on their) desired outcome. And to me, that's not what the framers had in mind. We two ways of covering said situations that were not covered by the Founding Fathers:

10th Amendment

Article 5, which we've used 17 times since the nation was founded.

If New York decides high capacity magazines aren't for them, they can invoke the 10th Amendment since it isn't technically covered under the 2nd. And the SCOTUS can't really say they are wrong since that right is reserved to the States and, by proxy, the people that elect said representatives in each State. And this is why, at least in my opinion, you won't ever see a challenge to the magazine bans reach the SCOTUS level. It wasn't envisioned, but the States took care of the matter themselves by covering it later. Now I do not agree on any kind of firearms ban or restriction since the 2nd has broad language of "arms" instead of specifics. And that's something non-originalists, as you stated, will twist to fit their political leanings. You'll get some that argue the comma isn't meaningful. Well, it's there for a reason isn't it? But different debate, different time.

I guess if you get down to brass tacks, I'm an originalist. I think the interpretation used in Roe v. Wade wasn't correct in regards to the "fundamental right" portion. It's not an enumerated right under the Constitution and the use of the 14th Amendment was incorrect in my oh so humble and not extensive legal expertise. The right to privacy is one thing and that's not under question. The fundamental right over a fetus isn't since I'm of the believe it takes two to tango and both parents should be concurring in the abortion decision.
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I know you're an origionalist. You know i respect your opinion, but there is another way to interpret the Constitution.
 
#81
#81
ClearwaterVol said:
I know you're an origionalist. You know i respect your opinion, but there is another way to interpret the Constitution.
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The problem, as you pointed out, is when the interpretations collide with personal or political motives.

Of course these days even being an origionalist is a political motive, so there's that.
 
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#82
#82
orangeluvr said:
Some of the protesters admitted they voted for t-rump. The whack job right was responsible for The Great Recession and from the looks of the current agenda another one is on the way. Trickle Up Economics. :crazy:
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Somebody needs to back and read Clintons legislation on easing loan restrictions.
 
#83
#83
Slander (we can go ahead and put libel in there too) is nothing more than the malicious harming of others that happens to fall under the purview of speech. Such malice is not and should not be protected any more than any other deliberate or reckless act that causes harm. Hell, it's not like the idea of defamation didn't precede the Constitution. I don't think this argument advances your position much.

And while we're on the topic let's not be at cross purpose. I've never posited that there aren't limitations out there. (speech or otherwise) My point has been sometimes, as in the case of the "yell fire" example, interpretations can get pretty lazy (again, that little quip has taken a severe beating) or even somewhat WTF. Keeping an eye toward strict interpretation lessens the ability and scope of what people call "legislating from the bench" and that's fine with me. Precedent is a damned dangerous thing and anything that keeps "personal" interpretations on a short leash is almost always for the better in my book. Beyond that you'd have to be drilling down deep in very specific case by case examples.
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You're missing the point. It has been argued on here that judges legislate from the bench and that the Constitution provides clear concise language to follow. The 1A language on free speech is an example. Congress shall make no law abridging freedom of speech. Its clear and it's concise. There are no exceptions. An originalist should strike down ANY law that infringes on free speech. The fact that slander actions existed prior to the writing of the Constitution, using the canons of constriction, is evidence that the framers knew of such laws and intended them to be overruled.

Judges are required to interpret laws, make exceptions and fill in the blanks. If Congress disagrees they can either pass a law overruling the decision, if such a law is constitutional or the Constitution can be amended.


Grand Vol said:
The problem, as you pointed out, is when the interpretations collide with personal or political motives.

Of course these days even being an origionalist is a political motive, so there's that.
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The 2A has, in my opinion, been defended by originalists using a non-originalist approach.
 
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#87
#87
ClearwaterVol said:
You're missing the point. It has been argued on here that judges legislate from the bench and that the Constitution provides clear concise language to follow. The 1A language on free speech is an example. Congress shall make no law abridging freedom of speech. Its clear and it's concise. There are no exceptions. An originalist should strike down ANY law that infringes on free speech. The fact that slander actions existed prior to the writing of the Constitution, using the canons of constriction, is evidence that the framers knew of such laws and intended them to be overruled.

Judges are required to interpret laws, make exceptions and fill in the blanks. If Congress disagrees they can either pass a law overruling the decision, if such a law is constitutional or the Constitution can be amended.




The 2A has, in my opinion, been defended by originalists using a non-originalist approach.
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Again, slander is HARM TO PEOPLE and while under the purview of speech is not protected, nor should it be. One can be originalist as hell and not have any interest in protecting fraudulent defamation. If you'd indulge me at your leisure read this and tell me what you think.

On the freedom to shout fire in a crowded theatre | Free speech | spiked

As to the 2A question what do you see as a non-originalist approach by it's defenders? I don't really see it in Heller.
 
#88
#88
I understand slander is harm to people and it's not protected, but an originalist should believe it protected. The court, through what many would call judicial activism, has carved out exceptions.

As to Heller, I haven't read that opinion in a year or two. It's not on my Saturday reading list. I'll try to read again on Monday and provide an opinion.
 
#90
#90
Burger said:
Somebody needs to back and read Clintons legislation on easing loan restrictions.
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They gone! Wait and see what t-rump and his "Swamp People" have in store for the economy. Buy munis'. :crazy:
 
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#91
#91
ClearwaterVol said:
I understand slander is harm to people and it's not protected, but an originalist should believe it protected. The court, through what many would call judicial activism, has carved out exceptions.

As to Heller, I haven't read that opinion in a year or two. It's not on my Saturday reading list. I'll try to read again on Monday and provide an opinion.
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The only way I could see an originalist wanting to protect fraudulent defamation is if they believed the right to be slanderous superseded the right not to be slandered. I'm not seeing that as a strong argument. My point all along has been there is a big difference in saying there is room for exceptions and there being damned, and I mean DAMNED little room for mucking about with the interpretations.

LOL! Yeah, I'm not going to give you a Saturday homework assignment. Have a good weekend.
 
#92
#92
orangeluvr said:
Y'all should move into the White House since you wouldn't know the truth if it punched you in the face.#Flynn lied. :crazy:
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And Flynn lying has what to do with the interesting conversation some of us are having with CWV?

That's right, nothing at all.

You see, some of us on here actually learn a thing or two by comparing opinions and listening to those that might know a thing or two more than we do. I even learn something from LG from time to time. Doesn't mean I agree with the vast majority of what he says, but he can be educational when speaking from a non-political standpoint. Some of us don't automatically jump to partisan arguments or bring in stupidity like you just brought.

So, please run along and let us continue this intellectual back and forth with CWV that's remained civil so far.
 
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#95
#95
Grand Vol said:
And Flynn lying has what to do with the interesting conversation some of us are having with CWV?

That's right, nothing at all.

You see, some of us on here actually learn a thing or two by comparing opinions and listening to those that might know a thing or two more than we do. I even learn something from LG from time to time. Doesn't mean I agree with the vast majority of what he says, but he can be educational when speaking from a non-political standpoint. Some of us don't automatically jump to partisan arguments or bring in stupidity like you just brought.

So, please run along and let us continue this intellectual back and forth with CWV that's remained civil so far.
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Bull$hit! Y'all voted for the human cheetoo and his plutocrats, suckers! :crazy:
 
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#96
#96
orangeluvr said:
They gone! Wait and see what t-rump and his "Swamp People" have in store for the economy. Buy munis'. :crazy:
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Then don't blame 2008 on trickle down economics when it was the fault of legislation that let banks enforce themselves and loans existed for unqualified recipients.
 
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#97
#97
Burger said:
Then don't blame 2008 on trickle down economics when it was the fault of legislation that let banks enforce themselves and loans existed for unqualified recipients.
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Ridiculous, trickle up economics doesn't work and never has. Watch what happens if the the corporate tax is cut to 15%. BTW bush slashed the number of enforcement officials responsible for regulation of the industry. Truther movement is under way.
 
#98
#98
orangeluvr said:
Ridiculous, trickle up economics doesn't work and never has. Watch what happens if the the corporate tax is cut to 15%. BTW bush slashed the number of enforcement officials responsible for regulation of the industry. Truther movement is under way.
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:eek:lol:

This should be good. Alternative truths?
 
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#99
#99
Grand Vol said:
And Flynn lying has what to do with the interesting conversation some of us are having with CWV?

That's right, nothing at all.

You see, some of us on here actually learn a thing or two by comparing opinions and listening to those that might know a thing or two more than we do. I even learn something from LG from time to time. Doesn't mean I agree with the vast majority of what he says, but he can be educational when speaking from a non-political standpoint. Some of us don't automatically jump to partisan arguments or bring in stupidity like you just brought.

So, please run along and let us continue this intellectual back and forth with CWV that's remained civil so far.
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Someone has to be here to keep y'all grounded in reality , so I won't be running along . The right gets really up tight when the truth or facts don't match their ideology. :yes:
 
#100
#100
hndog609 said:
The only way I could see an originalist wanting to protect fraudulent defamation is if they believed the right to be slanderous superseded the right not to be slandered. I'm not seeing that as a strong argument. My point all along has been there is a big difference in saying there is room for exceptions and there being damned, and I mean DAMNED little room for mucking about with the interpretations.

LOL! Yeah, I'm not going to give you a Saturday homework assignment. Have a good weekend.
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From a strict perspective, an originalist should look no further than the text on paper when that text is unambiguous. If there is an ambiguity then look to the history and intent. An originalist believes that it is not up to the courts to make law, but merely interpret. Therefore if there are to be exceptions those exceptions need to be spelled out in black letter law or constitutional changes.

Ok, now for the 2A question with regard to Heller and McDonald. Much of the confusion originates with an earlier case Miller. The Miller opinion was claimed as a victory by both gun control advocates and for gun rights people. Miller was a decision which was full of dicta and which held that the federal government could restrict ownership of guns that did not have a military purpose. The gun in question was a sawed off shotgun. SCOTUS remanded with instructions to have further proceedings consistent with the opinion, but Miller was already dead. It is a generally panned and not often cited case because of inconsistencies and broad dicta.

Heller, was IMNSHO, a correctly decided case. Justice Stevens in his dissent attempts to distort the Miller case into something that it was not. He attempts to say that Miller stood for the proposition that individuals could possess firearms in connection with military service only. In my opinion, nothing could be further from the truth. Though I disagree with the Miller holding, I believe, as does Scalia, that Miller stands for the proposition that the government cannot restrict ownership in guns that have military purpose. Therefore, I believe that the correct decision was reached in Heller.

Now, for McDonald which was filed on the day that the Heller opinion was released. McDonald was simply an opinion that stated that the rights created in the 2A could not be unreasonably restricted by the states. Again, I agree.

Now, for where the originalists have pushed with regards to 2A. An originalist should believe, as McReynolds, who authored the Miller decision that the 2A was a right granted to the people for the purpose of the citizenry having firepower equal to that of the federal government so as to prevent tyranny. However, nobody today is seriously arguing or if they are they aren't being taken seriously that all Americans have a right to purchase surface to air missiles. So now originalists are being forced to read limitations into the 2A that the framers did not intend. And they are being forced to do so in order to address a situation not considered by the framers.
 
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