Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: liberallarry
"Your points about limits of interpretation are well-taken. No one wants to say that any interpretation has validity. But practically speaking establishing objective limits is not possible - they have no meaning except an operational one; whatever the Supreme Court says is a valid interpretation is one."

I am returning once more to the point on which we really disagree. You say that establishing objective limits is not possible. Here you are in error. Such objective limits were established, until Oliver Wendall Holmes changed them, making them subjective, which amounts to admitting their are no objective limits at all. The Roe v. Wade decision is an excellent example of the result of throwing out objective standards, agreed to by common law and common understanding of interpretation. You might say that we have such a common understanding but that it has merely changed and now is more in line with Holmes' understanding of a "living" document. The point I keep reiterating is that the living document theory is a pretext only for judicial usurpation of the legislative function of government, not in line with John Marshall's understanding of interpretation limited by the words of the document itself. Once again you have returned to the position that any interpretation at all is a correct interpretation regardless of the violation of the meaning of the words . Yours is an argument in favor of judicial usurpation. They control the meaning of the words, therefore they in a very real sense make the laws.

This is not the legitimate function of the judiciary. You might respond, "then how shall we enforce rules of interpretation?" Now this is a legitimate question. Both the executive and the legislative branches shirked their duties to defend legitimate interpretation of the Constitution. Moreover the states can defend their sovereignty by passing new laws (though their primary defense had been stripped by the 17th amendment). But, the American people are the ultimate guardians of the Constitution, and the Constitution provides means for us defending our rights within those rights themselves, namely the first and second amendments: our right to free speech, and our right to defend free speech with the ultimate defense. But all these protections against what had always been considered the weakest branch of government have proven ineffective, because these walls and fortresses of defense provided by our Constitution have not been manned. The guards were asleep at their stations or willing accomplices and even cooconspirators or instigators like FDR.

Say what you will, the truth is that usurpation has occurred, our Constitution weakened, and we are drawn closer to or deeper into (as you will) tyranny.

One last point. You do not seem to understand the gravity of this change in interpretation. Our Constitution is our fundamental law, on that I am sure you agree. But perhaps you do not understand the supreme importance of that statement. Our Constitution and our compliance with it is all that distinguishes our Republic from any banana Republic. It is a truth long known and agreed to by ever political thinker of merit who at all understands democracy: that democracy without an enduring Constitution, whether written or unwritten, devolves into tyranny, always and very soon.

Now by saying that whatever the judiciary asserts is a valid interpretation is a valid interpretation, you are saying that we have no Constitution at all but are ruled by dictate, that is by WILL merely.

I cannot stress this enough: words cannot mean anything you want them to mean. There is always room for debate. One of the differences between a good law maker and a bad, is that a good lawmaker leaves little room for debate. In constructing the Constitution our Framers made good law. Difference of interpretation is limited, until you argue that it is a living document. Law is written to prevent men from ruling on the basis of WILL. Laws have never been perfect but it is better than WILL. What prevents it from being WILL is the fact that words cannot mean everything. Again when you argue that words can mean anything at all, you assert that we are ruled not by law and judgment but by the WILL of a few. An agreement on the meaning of words (even though there is room for debate

326 posted on 03/24/2002 7:01:50 AM PST by Cincincinati Spiritus
[ Post Reply | Private Reply | To 306 | View Replies ]


To: Cincincinati Spiritus
Strike that last half written sentence. Again I hit post instead of preview.
327 posted on 03/24/2002 7:03:03 AM PST by Cincincinati Spiritus
[ Post Reply | Private Reply | To 326 | View Replies ]

To: Cincincinati Spiritus
I think I'm saying what Scalia said - that every time you select a Supreme Court Justice you conduct a mini-plebiscite on its meaning. I think that's what Oliver Wendell said. I think that no matter how careful you are you cannot ever escape completely from human subjectivity. I think you're right when you say that the American people are the ultimate arbiters and interpreters of the document's meaning and express their will through the 1st and 2nd amendments, and with their votes. I think that the last sentence is not in contradiction with the others. I think that people and peoples make mistakes and we could very well be slipping into tyranny and dissolution and many of us might be unaware of it until too late. And, most important, I think that it's quite possible that I'm wrong in all my thinking. Why not? Most people are.
328 posted on 03/24/2002 7:22:39 AM PST by liberallarry
[ Post Reply | Private Reply | To 326 | View Replies ]

To: Cincincinati Spiritus
Saban Giving Himself Quite a Name

Here's an example of a recent thread where I was completely wrong and am still confused. If you'd care to try your hand at it I'd much appreciate hearing your views.

329 posted on 03/24/2002 7:27:38 AM PST by liberallarry
[ Post Reply | Private Reply | To 326 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson