If the words themselves are without stable meaning, why bother with a written Constitution in the first place?
The task for Judges and Justices, is to apply that meaning to current situations, not to bend the meaning to the fit the current situtation.
Precidence is all fine and good as a source of stability, but it should not be allowed to perpetuate earlier mistakes. Even Justices of the Supreme Court are human and subject to making mistakes, wether due to political views, or other factors such as racial or ethnic prejudices.
The whole area of the application of the Bill of Rights, the first 8 amendments that is and maybe the ninth as well, to state governmental action, is a very good example of the Justices not wanting to overturn precidents set by earlier Courts. The earliest cases after passage of the 14th amendment basically held that it did not apply the bill of rights protections to the states, even though that was the intent of it's authors as so stated and recorded. Rather than just saying, "the earlier decisions were mistakenly decided", the Court came up with the "selective incorporation" via the Due Process clause, rather than applying the Privleges and Immunites Clause of the 14th, which is what it's authors decribed as the rights protected by the Constitution, including the first 8 amendments (some of the rights/immunities are put forth in the main body of the Constitution).
They did not include "penumbras" and "emanations" in "what they made".
And to wilfully ignore plain English statements such as "the right of the people to keep and bear arms shall not be infringed" deserves tar and feathers.
--Boris
LOL! That's why you should always bring your a lawyer to court! They're trained in rhetorical tricks.
Prudent interpretation is never contrary to original intent. The text and intent are neccessarily the same!
Interpretation consists of following the text AND the intent. When after good and faithful effort the judge finds using BOTH he cannot address the case- and that can happen in an infinite universe- then, and only then, is he at liberty to take the best meaning he can to address the issues.
And that is so whatever constitutional ideology the judge may have.
As Madison put it: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character . . . [T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be . . . in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses."
Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228) "
The author has set a false dichotomy for you. The conflict is between those who do as Madison said, and those who read into the text what they wish to and can in spite of the intent.
Of course Judge Bork does not adopt the position of equality for all? What, may I ask, leads to such an erroneous conclusion?
I thought "the intentions of the adopters" were pretty much laid out in the Federalist Papers and other speeches, documents, minutes, records, and letters from the period?
I'm re-reading this entire thread for the third time and am finally beginning to understand the positions.
The above quote seemed to jump right out at me and wondered if the Mass. court didn't take the above quote a little too seriously? I posed a question on several threads in the past and strangely enough, not one person wanted to answer it. Maybe I can get the answer here.
The question was, can courts re-define words that are already legally defined and use their new definition to justify and render a decision?
If not, then the Mass. SC decision goes far beyond activism. It is stark usurpation of the power of congress to write the laws. I'd go further. It renders the constitution and the rule of law useless and replaces it with judicial tyranny.
Here's my logic. Marriage is reserved and defined as a union between two people of the opposite gender in the same way that the word, 'peach' defines a specific fruit.
Same-sex relationships might be called unions, if that is the wisdom of the day, but it must be called by a different name using the reasoning that a lemon cannot be called a peach, though both are fuits, of a sort.
Apart from the reason the decision was made, what would prevent the court from arbitrarily begin RE-DEFINING other words?
So what's the remedy, short of incorporating and implementing 2A?