Posted on 08/23/2007 12:31:23 PM PDT by tpaine
Far to many 'quasi-Borkians' on FR forget the above truisms when they argue against our right to arms, and for the power of various levels of government to regulate/prohibit those rights
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“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
People can tear this apart a million different ways. Just read it the way it’s written. The more we try and analyze the brains of the writers, the trouble we get into.
For instance, the Framers of the Constitution wrote “All men are created equal”. If we want to look at the Framers minds during those times, they believed that Blacks were 3/5 of a human being and they had slaves. “All men” did not include Blacks. Nor did it include women, that’s why women did not have the vote. I think we need to stop trying to figure out what the Framers meant “exactly” because everyone will have a different opinion. Read and enforce the Constitution the way it was written, or change it.
I mean that the constitution is our supreme Law of the Land, -- and our inalienable rights are not subject to change whenever, -- just because some leftist - [or a rightist like Bork], thinks it's OK..
I’m curious about how so many people talk about the “Framers” of the constitution. I heard that this term has been used in recent years instead of the “Founding Fathers” because it offended women’s groups to use a gender specific term such as “fathers”. Yet the fact is that all of the “Framers” were indeed men. So how does it affect the self-esteem of women to talk about the “Founding Fathers” when they were men?
Because it gets their panties in a wad and they find that uncomfortable.
Well, maybe their panties are in a twist.
But seriously, how often do you hear the term “Founding Fathers” anymore? Instead, this term “Framers” is used in news reports and in speeches by politicos. I remember one time Carol Moseley-Braun was about to say “Founding Fathers” in a speech, and she stumbled around it and finally said “our ancestors” instead. To talk about the “Framers” is politically correct speaking.
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Because they want it to. I don’t know of a woman that looks at it like this though. Guess I run in the wrong crowds........my joice.
I used the word “Framers” because the author did. Normally I won’t use that word. I’ll watch it from now on though. Thanks for pointing this out.
Well then, I believe I would be that modern analog.
And your larger point is important to note. Society was very different in 1787. Society continues to change, and the best way to deal with changes and the laws is to amend the constitution and change our laws through legislation. Certain people simply want courts to re-interpret the language in the constitution to mean whatever they want it to mean.
Here's where I get off the bus with the article. It is indisputable that the founding fathers intended to leave issues like sodomy, gambling, prohibition etc to the states. The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
I think it is to marginalize the Constitution by trying to make it sound like it was just those who created it that meant/thought/felt what it says and that the rest of the population did not feel/think the same way.
Don’t perpetrate misinformation. The “3/5 of a person” was a compromise for the sake of proportional representation, struck between Northern states, which wanted not to count slaves for Congressional representation at all, and Southern states, who wanted to count slaves fully for the sake of representation in Congress, even though the slaves were not enfranchised citizens. The Constitution does not “regard” black people (or slaves) as 60 percent human.
I understand what you are saying. That is the problem we run into. If you want to go back and try and figure out what the Founding Fathers were thinking, you have to look at what they were doing at the time. That’s where we get into trouble. Did their slaves have the vote? No! Why? When our courts tell us what the Constitution “Really” means, we are in trouble. When the Founding Fathers said “All Men”, that’s exactly what they meant.....”Men” because they didn’t give the women the vote. That’s what I mean about reading the original Constitution.
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Jefferson, a slave owner was conflicted about what he wrote and thought, and what he did. His slaves were inherited from his father and father in law. After his death his skilled slaves were freed. Others that ran away (2 I think) he never pursued.
I firmly believe that the man who wrote "All men are created equal" truly believed that. The circumstances, and political realities and difficulties of birthing a new nation, made it difficult at that time. But it didn't make the phrase any less true.
Not true at all. All prohibitions are infringements on individual liberty. -- Do you really think they agreed that States could flat forbid a man from drinking booze? Or from carrying cards/gambling? - Hell, they enumerated our right to carry guns, - and then said in the 9th that enumeration of such rights wasn't needed.
The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
The Constitution specifies in the 10th that some powers are prohibited to States. Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
"-- The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation. --"
"-- Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy [or other vices like booze, or gambling] -- merely because such practices cause (in Bork's words) "moral anguish" among the electorate. --"
Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783. There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way. Regulating morals was a power reserved to the States.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court. At least if you care at all about what the Framers intended.
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