Posted on 10/19/2005 8:16:28 PM PDT by quidnunc
noun
1. a philosophical system that holds that every rationally justifiable assertion can be scientifically verified or is capable of logical or mathematical proof, and that therefore rejects metaphysics and theism. [ORIGIN: from French positivisme, coined by the French philosopher Auguste Comte .]
• a humanistic religious system founded on this.
• another term for logical positivism .
2. the theory that laws are to be understood as social rules, valid because they are enacted by authority or derive logically from existing decisions, and that ideal or moral considerations (e.g., that a rule is unjust) should not limit the scope or operation of the law.
3. the state or quality of being positive : in this age of illogical positivism, no one wants to sound negative.
*gasp!* They've been exposed as legal positivist! What about slapping this label on them demonstrates anything wrong in their thinking? Correct me if I'm wrong, but it would seem that positivism flaws in some subjects are self-evident (quantum physics, theology, foreacsting) and in other cases, nearly tautological (mathematics, abstraction, language).
It would seem that what the author is really saying is that Bork and Frum are guilty of believing that some things are correct, and some things are wrong, and therefore we can disavow any responsibility for attempting to discern justice or truth and instead substitute our feelings.
Bork ignores original intent when it comes to the 2nd amendment. He's educated beyond common sense.
What the author is saying is that the positivists look uponm the lay as strictly a social contract which is entirely divorced in our founding principles as set forth in the Declaration of Independence.
#4 above should read "What the author is saying is that the positivists look upon the law as strictly a social contract which is entirely divorced from our founding principles as set forth in the Declaration of Independence."
I've seen lots of the first group. Is the second group comprised of the "Bush bots"? That doesn't sound accurate as a representative to the many arguments I've read just here on FR. He lost me at "splenetic"... one of those "elitist" words, right? Not ashamed to admit, I looked it up.
Splenetic:
1. Of or relating to the spleen.
2. Affected or marked by ill humor or irritability.
Bork does not mention the Declaration of Independence because it is not what the 13 states agreed to when founding the US. Thus it has no force of law.
The biggest reason for originalism is the US Constitution IS WHAT WE HAVE AGREED TO. There is a mechanism for altering our agreement, but it is not the courts.
If you believe for example that population density is such that the right to bear arms is too dangerous a right in modern times, you must build a consensus for that position and alter our basic agreement. That is if you believe the Court is correct that the 14th ammendment incorporated the Bill of Rights on the states?
If as an originalist, you do not believe the 14th ammendment incorporates the only some of the rights, then the right of citizens to bear arms becomes a state matter and they can regulate weapons as they see fit and Congress has no say. You must then build a consensus in your state that population is so dense that weapons must be regulated.
In this example, SCOTUS must decide what the ratifier of the 14th ammendment intended. No appeal to the Declaration matters. You might better appeal to the Confederate Constitution that was at least adopted by some of the states that ratified the 14th ammendment within a few years. The Declaration led to the Articles of Conferation and then to the US Constitution. Appealling to the Declaration is like appealing to the Articles. It is appealing to a foreign document, ie a document not of the United States.
"2. Affected or marked by ill humor or irritability"
Much of the Miers debate here has been quite splenetic. And thank you for looking that up, I will take the word to work tomorrow for fun and games. :)
So, are you saying that the United States is not, after all, a nation founded upon ideals and principles?
A social contract implies the consent of the governed. Let's not forget that what the author is bemoaning is, in almost all cases, (New London being an exception) an activist and liberal court striking down the democratically expressed will of the public.
We have a representative republic, not a political democracy.
The will of the people is expressed through the actions of their elected representatives.
bttt
I am saying that the agreement that the states entered into when forming the US is the US Constitution.
The ideals of the Declaration might well serve to guide the Legislative and Executive branches who strive to make policy decisions we hope consistent with the ideals and principles of our founding.
But the Judicial branch is resposible for seeing to it that our laws are enforced consistent with what the laws actually say and whether or not our laws conflict with the agreement, the US Constitution, that formed the country. The Judical can not be orginalist and stray from that task. They must deal with the US Constition, the laws passed by the Legislative branch and our inherited common law. Appealing to the Declaration or Articles is like appealing to some French court decision. It is appealing to some foreign document.
It would be helpful, if the front page of FR posted a link to the Constitution and the amendments, which few here seem to know and some like to twist out of all proportion, to fit whatever it is they want it to say.
That is a very simple, yet very important observation. I'm stunned is it lost on so many people.
True enough. But it is not the job of the court to make insights into philosophy. It is to apply the rules. Nothing less, nothing more.
It is the job of the legislature, and only the legislature, to make sure that our laws reflect our philosophy.
An originalist would say, what the hell are you talking about JLS?
The 14th has nothing to do with the 2nd. The 2nd doesn't need the 14th to apply it to the "sates". The second is an ackowledgement of the the peoples RTKABA. Period.
And the DOI is most definitely NOT irrelevant ot an originalist. Since most of the same people signed both documents the DOI, though it has no authority in law, is the originalists best friend.
And when the legislature makes a law abridging your right to private property, then what?
Actually, the Declaration of Indpendence is the founding document for our country, and the only document that was required to be approved by all 13 colonies. In fact, no man who refused to sign the Declaration was allowed to remain in Congress. The Constitution was the second attempt to codify the relationships among the state, and did not come along until some 13 years later.
By the way, apparently Robert Bork disagrees with your view on the 2nd Amendment. He believes that it only applies to militia, and is not an individual right. So tell me, what is the originalist position here?
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