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1 posted on 11/14/2003 10:24:10 PM PST by NutCrackerBoy
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To: general_re; yall; tpaine; ellery; mrsmith; Eastbound; sourcery; jwalsh07; Sloth; pierrem15; ...
Against my will almost, this essay forced me to see that prudent interpretation can be contrary to original intent.
2 posted on 11/14/2003 10:41:56 PM PST by NutCrackerBoy
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To: NutCrackerBoy
The Constitution is in some sense a contract. It must mean the same thing today as when it was written, taking into account amendments made through the process specified in the Constitution itself. The amendments also must mean the same thing today as when they were written. That is why intent and as importantly the original understanding of it, in so far as it can be known or demonstrated, is the second factor in Constitutional interpretation. The first is the text itself, which in most cases is perfectly clear.

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).

3 posted on 11/14/2003 10:58:59 PM PST by El Gato (Federal Judges can twist the Constitution into anything.. Or so they think.)
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To: NutCrackerBoy
read later
4 posted on 11/14/2003 10:59:55 PM PST by LiteKeeper
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To: NutCrackerBoy
It depends on what the meaning of "is" is.
5 posted on 11/14/2003 11:04:23 PM PST by clee1 (Where's the beef???)
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To: NutCrackerBoy
"Should we not pay the authors the compliment of believing that they meant no more than they said? What they left unsaid, they left open for us to decide. What then are the judges looking for, if it is not the intent of those who made the Constitution? They are engaged in doing something, not looking for anything ... The Court is not dealing with the men who made the Constitution, but what they made."

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

6 posted on 11/14/2003 11:06:05 PM PST by boris (The deadliest Weapon of Mass Destruction in History is a Leftist With a Word Processor)
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To: NutCrackerBoy
Bump for later!
9 posted on 11/14/2003 11:14:16 PM PST by Eastbound
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To: NutCrackerBoy
bttt
24 posted on 11/15/2003 10:26:26 AM PST by ellery
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To: NutCrackerBoy
Brest bump.
28 posted on 11/15/2003 1:18:41 PM PST by Scenic Sounds (Hoy, no tengo ningĂșn mensaje a compartir.)
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To: NutCrackerBoy
Bump for later reading.
53 posted on 11/15/2003 3:15:08 PM PST by MattAMiller
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To: NutCrackerBoy
"Against my will almost, this essay forced me to see that prudent interpretation can be contrary to original intent. "

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.

59 posted on 11/15/2003 3:31:51 PM PST by mrsmith
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To: NutCrackerBoy
Hey, I'm no truck driver! I just found the hat.
60 posted on 11/15/2003 3:32:31 PM PST by Old Professer
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To: NutCrackerBoy
This seemed to be Judge Bork's position in an important article he wrote in 1971. He said that the Fourteenth Amendment was intended to enforce a core idea of black equality against governmental discrimination. In the same article, however, he asserted that in order for the Court to be neutral, it should choose a general principle of equality that applies to all cases. This might suggest the fourth and broadest possible interpretation of the equal protection clause: no discrimination against any group - whites, women, men, homosexuals. Of course, Judge Borke does not adopt this positionLike former Attorney General Meese and most other conservative lawyers, he seems to choose a much narrower principle, which would prohibit all racial classifications but would not be concerned with most other classifications

Of course Judge Bork does not adopt the position of equality for all? What, may I ask, leads to such an erroneous conclusion?

62 posted on 11/15/2003 3:35:13 PM PST by jwalsh07
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To: NutCrackerBoy
"The Intentions of the Adopters Are in the Eyes of the Beholder

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?

94 posted on 11/16/2003 11:43:46 PM PST by Lancey Howard
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To: NutCrackerBoy
"Words in legal documents are simply delegations to others of authority to give them meaning by applying them to particular things or occasions."

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?

132 posted on 11/19/2003 1:37:55 PM PST by Eastbound
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