Posted on 10/06/2014 12:17:14 PM PDT by Academiadotorg
Contrary to the assertions of critics of the original intent approach to the Constitution, super majority rules, such as requiring a two-thirds majority to amend the Constitution, “tend to produce desirable constitutional provisions” such as granting blacks voting rights and women as well, Michael Rappaport, a law professor at the University of San Diego, said recently in remarks at the Cato Institute.
Rappaport coauthored the recently released book, Originalism and the Good Constitution, with John McGinnis of Northwestern University’s Law School, who also appeared in the seminar at Cato. McGinnis also noted that the problem with the original Constitution, regarding the exclusion of blacks and women, “has largely been corrected.”
McGinnis said that critics of the original intent interpretation of the Constitution have “an objection to constitutionalism.” To them, the “dead hand theory,” as it is known among law professors, “doesn’t make a lot of sense,” said McGinnis.
Critics contended that writing the Constitution was far easier for the Framers while they were writing it and could avoid the problems we face today like needing a super majority to change the Constitution. But, McGinnis said the writing process for the document “was a serious super majoritarian process.” The resulting “informal advantage” of the framers “is inevitable in a world where time goes one way,” said McGinnis, “We reap the advantages of the stability [that] the Framers gave us.”
But, McGinnis said that we must take into account the alternatives: We abandon the current Constitution and write another, or we enforce the current document and make corrections, or we enforce the “imperfect Constitution” as it is without making changes. “It’s very difficult to suggest that we go with a whole new Constitution,” McGinnis said.
Although the Constitution may seem outdated, Rappaport said that it would require significant time and resources to map out a detailed analysis of the Framers’ intentions when the Constitution was written. McGinnis said, “The Framers never forgot that it was a constitution that they were creating” and built a mechanism for change within the document . Federalism, which gives states flexibility, “can have tremendous benefits for liberty.” Like Rappaport, McGinnis said that concentrating power in the hands of a few (such as the Supreme Court), “makes people suspicious of the amendment process.”
He criticized the judicial branch, particularly the Supreme Court, because their decisions are not super majoritarian by nature. Instead, the Supreme Court justices rely on past court decisions to interpret the cases of the present.
Ping.
You see? Separation of church and state. ..clearly, America's founders wanted us all to be atheists, to hate religion and to create a humanist utopia.
The following is the kind of historical Monday morning quarterbacking I despise, and leads me to question the intent and knowledge of the authors:
McGinnis also noted that the problem with the original Constitution, regarding the exclusion of blacks and women, “has largely been corrected.”
Slaves were outside of the civil society and had no rights. Women weren't entirely free either, for they depended on husbands, who would presumably tell them how to vote. In the vernacular of the day, neither groups "had a will of their own." And, it was and is up to the states to determine the qualifications of electors to the House, and since 1913, the Senate.
Instead, the Supreme Court justices rely on past court decisions to interpret the cases of the present.They don't even do that. Lots of doubletalk is used to obscure the fact that over time, the SCOTUS decisions are inconsistent. The law is arbitrarily applied.
Fixed that for you.
Precedent is often used in their doubletalk; but even so, precedent is loathsome to me on its own: just because we've always done it that way
or we did it this way in the past
doesn't mean that that particular way
is right.
That’s why it is very hard to follow them.
As seen in pretty much any case that claims to cite Miller.
Have you seen this before?
http://www.constitution.org/2ll/schol/gun_control_dencite.htm
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question [2nd amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration [Illinois parade permit laws] do not have this effect.PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)
Federal courts consistently cherry picked out of Presser, and asserted that it stands for the exact opposite of what it says.
And don't get me going on the Heller decision, or SCOTUS silence faced with Heller II (DC's ban on "assault weapons" and "large capacity" magazines found constitutional by DC Circuit).
The courts deserve respect for the same reason the mafia does. If you don't follow their orders, they will call out the goons.
Spencer Irvine of Accuracy in Media assult on the Supreme Court and its decisions particularly the recent ones which sets everyone marching off in that esoteric direction. While there is merit in disscussing this facet of the constitution. What should be under discussion right now is the separation of powers and the outline of duties that exist under the constitution between the executive and legislative branches.
For example this;
While the talkies, talk radio show hosts, need to remind “US” of this.. Members of the House and Senate also seem to forget. While those selected to head various federal departments of government are recomended by the incomming POTUS (president of the United States). Those candidates are constitutionaly required to be approved by the Senate in a procedure known as advise and consent.. Those appointed then are also sworn to uphold,serve, protect,and support the constitution. Not the executive branch. .
Therefore they and their respective departments are answerable to both houses of congress which funds these operations and can and should refuse any executive order if that order works contrary to existing legislation which created it expands, modifies,or radically changes those deparments purpose of operation or is contrary to the interests of the country ..
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