Originalists and the ‘Other Amendments’

Thousands of miles of column inches have been writen on the topic of originalism, and the question of whether or not Judge Roberts shares this perspective is receiving the same voluminous treatment. Wikipedia describes originalism in this manner:

The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.

Last week, Matt Welch suggested several questions he would like asked of Judge Roberts:

You’re on a lifeboat, but it can only hold 8 of the original 10 amendments without sinking, killing your whole family. Which ones go?

What about 20 of the 27? With that in mind, my question:

“Do originalists place more primacy on the bill of rights than they do the subsequent 17 amendments?”

Again, this may highlight my ignorance more than anything, but I am curious as to what you think.






78 replies
  1. 1
    ppGaz says:

    I have no opinion on what originalists think; I put them in the same class as creationists. They’re idiots.

    Originalism is just a cover word. It covers for “dogma”. And for a particular dogma, which paints any present-day nutty idea to appear as if it were supportable as “original intent.”

    Not only is original intent always debatable, it is also unsustainable as a first principle. You’d have to convince me that the Founders would have been content to see the United States remain frozen in time, an anachronism, while the world spun off into infinite varieties of change around it. Which Founder could have forseen that the word “arms” would someday be taken to mean 50 caliber automatic weapons with armor-piercing velocity? Or bazookas, or nuclear-tipped devices? I won’t believe that the Founders were planning Egypt, a democracy in name only, where the dicta of the state, cloaked with phony “originalism”, could be used to beat down the people.

    Originalists are phonies. I am less interested in their arcane interpretations of the Constitution than I am in their true interest, namely, their own power.

  2. 2
    M. Scott Eiland says:

    These days we could probably do without the Third Amendment (no Congress or President would dare impose quartering during peacetime, and during wartime it would be able to impose it under the Third Amendment in any event), and I’m not terribly fond of the Seventh Amendment–I see no implications of tyranny in judges being the finder of fact in a lot of federal–and state–civil trials that require the not-inconsiderable cost of a jury under the current system. I left out the 9th and 10th because they’re important symbolically, even if they’re held in mild contempt in practice. However, I’d be for wiping them out tomorrow if it meant I never had to see the word “penumbra” or one of its fellow travellers in a Supreme Court opinion again.

  3. 3
    M. Scott Eiland says:

    You’d have to convince me that the Founders would have been content to see the United States remain frozen in time, an anachronism, while the world spun off into infinite varieties of change around it.

    They weren’t–that’s why they put that little gadget in called “Article V.” It calls for these amazing little things called “constitutional amendments,” which actually change the content of the Constitution. The Bill of Rights was created using that very procedure, and slavery was abolished by it–I’ve even heard a rumor Article V was used for the purpose of giving women the vote.

    The “evolving standards” school of thought–except insofar as it is used to address concepts and things not existing at the time of the adoption of the Constitution–is an ongoing abrogation of Article V, and should be despised by anyone who has respect for the Constitution.

  4. 4
    Jake S. says:

    To my own reasoning, an originalist talking about any amendment in a positive fashion would be a contradiction in terms. By definition, an amendment alters the original document and therefore would be considered anathema to any true originalist.

    But when the Bill of Rights comes into play, this definition gets more than fuzzy. History tells us that many of the 13 States would have refused to ratify the original Constitution without the inclusion of Amendments One through Ten. So it can be argued that the Bill of Rights should be included within the scope of the original document, leaving any additional amendments beyond consideration.

    And no, I’m not an originalist. Just attempting to use a bit of logical thought to try to answer the question.

  5. 5
    ppGaz says:

    they put that little gadget in called “Article V.”

    Yeah? So that people who talk “originalism” out of one side of their mouths, can talk about an amendment to preserve “sanctity” out of the other? Please point me to the literature which shows that the Founders had an interest in “sanctity.”

    The amendment process was well-intended, but it’s fatally flawed. For one thing, it depends entirely on a malleable political process, which does not now exist, and doesn’t appear on the horizon. Meaningful and constructive amendment now is virtually impossible. For a good example of how it can be used as a tool of coercion and foolishness, see “Prohibition.” We don’t even have the chutzpah to give repeal of the Electoral College mechanism a try. Never mind actually ratifying such a thing … there’s no point in even giving it a good trial. The result is that for better or worse we’re stuck with this Rube Goldberg contraption.

    What do we get in the dysfunctional atmosphere of today? Flag-burning amendment. Gay-bashing amendment.

    I’ll consider originalism as a valid concept when the same people who talk it up are not pimping the hideous and un-American Patriot Act. When they’re not seeking to crush dissent and speech, and seeking to find new ways to invade the privacy and steal the liberty of citizens, in favor of their favorite power-grabs.

  6. 6
    Stormy70 says:

    The Electoral College will never be abandoned. The smaller states would never give up their power. Why do you want the electoral college overhauled? (Not snarky, really would like your views, please.)

  7. 7
    ppGaz says:

    Why do you want the electoral college overhauled?

    Well first of all, for the record, I didn’t say that I did. I said that the mechanism for amendment doesn’t work, using the fact that the EC, surely one of the most flawed pieces of the original document, can’t even get a fair trial. It needs to be debated, perhaps reformed … but there’s no chance this will happen, not because the issue isn’t worthy, but because the process does not work. It fails to provide for effective amendment, while it provides opportunity for abuse (flag burning, gay bashing).

    Having said that …. the “smaller states” argument is valid, but so is the “will of the people” argument. The two are in collision here. The Founders didn’t forsee this, because they didn’t envision ubiquitous suffrage and a rapid pace of political challenges. The Founders gave us privileged franchise, ignored slavery, and so forth. We have ample example of their human imperfection, with its accompanying inability to see the future. Which makes originalism, to me, about as reliable as the idea of a flat earth.

    Anyway, the “smaller states” vs “will of the people” thing is a tradeoff. Whether it’s a good one or not, I’m not convinced either way. If I had to guess, I’d say it’s a disaster waiting to happen.

  8. 8
    Bernard Yomtov says:

    Why do you want the electoral college overhauled?

    First, there’s the obvious problem that a candidate can lose the popular vote and still be elected.

    Perhaps even more important is the fact that the Electoral College effectively disenfranchises huge numbers of voters. Texas Democrats and Massachusetts Republicans had essentially no say in the last Presidential election. And of course this is also true of members of the minority party in all but the “battlegound” states. Do we really want a system where the voters in only a small number of states effectively elect the President?

  9. 9
    SayUncle says:

    Not only is original intent always debatable, it is also unsustainable as a first principle. You’d have to convince me that the Founders would have been content to see the United States remain frozen in time, an anachronism, while the world spun off into infinite varieties of change around it. Which Founder could have forseen that the word “arms” would someday be taken to mean 50 caliber automatic weapons with armor-piercing velocity? Or bazookas, or nuclear-tipped devices?

    Utter hogwash. The concepts or ideas should be carried forward or changed (you know, there is a means to change the Constitution, right?). By your asinine rationale, we have no free speech on Al Gore’s Internets because some guys over 200 years ago didn’t know we’d have blogs that could reach hundreds of thousands of people per day. And if you tell me something stupid like ‘speech never killed anyone,’ I’d refer you to 6m Jews or 800k Rwandans who’d disagree.

    I’m not saying people should have 50 caliber automatic weapons with armor-piercing velocity? Or bazookas, or nuclear-tipped devices (and I’m as pro-gun as they get) but merely that the law should actually address the issue, which it does. And I take issue with some of the ways it addresses that issue.

  10. 10
    wilson says:

    Good point above about the evolving concept of arms suggesting framers expected interpretation of each clause based on facts as they exist now (not frozen in time).

    Also a good point above about Article V and the possibility of amendments indicating the framers expected some deference to textualism and original intent.

    I tend to like the Roberts approach of leaning toward minimalism and avoiding slavish adherence to any over-arching original intent or textualism theory.

    Original intent and textualism ideas apply as well to amendments after the first 10. If one thinks of a constitution as a sort of contract or charter, one can see why it is important to consider arguments from text and original intent (to the extent discernable) in working out a principled interpretation.

    Justice Black and his brethern used to have fine debates about the intention of the framers of the due process clause of the 14th amendment – did senators mean that the due process clause would make the first 10 amendments applicable to the states? Black went so far as to point to his experience as a senator as some sort of proof that he could speak accurately about what the Senate “must” have originally intended in 1865.

    Original intent arguments are not knew. Any student of the history of the Supreme Court can see why Roberts has a point in saying lets not put all our eggs in that “original intent” basket.

  11. 11
    ppGaz says:

    By your asinine rationale, we have no free speech on Al Gore’s Internets because some guys over 200 years ago didn’t know we’d have blogs that could reach hundreds of thousands of people per day.

    Wow, that’s about the most convoluted piece of reasoning I’ve seen in a long time. And to top if off, I’m not sure what your position is, since I can’t parse it out of your rant.

    If you don’t think that originalism is about narrowing the view of the document to one which can be argued to be congruent with “intent,” then what do you think it is about?

    First of all, “intent” can only be divined by reading ti leaves, or extrapolation, or in some cases, original literature (Federalist and anti-Federalist papers, etc). But since the Founders are dead and gone, and the context of their world with them, we can only presume to really know their intent. Having Bork speak for a Founder is like having Jerry Fallwell speak for Jesus. Let’s just say, I’ll need at least a second opinion. Any who calls himself an “originalist” and starts telling me what the Founders intended, gets shown the door by me. I can read the stuff just as well as he can and decide for myself what I think the intent was.

    But even if you can get past the “intent” obstacle, I am not sold that “intent” should govern. I see the document as a set of operating instructions for a government, not as a set of social or even legal principles. Throughout, it constrains the power of government, yet the right wing today, the self-appointed guardians of intent, think nothing of embellishing the power of government wherever it suits their vile purposes. Then they role out some contrived “intent” or “originalist” argument to cover up what they are really doing.

    I ain’t buyin it.

    And why this forum is so “intent” on making people repeat themselves all the frigging time, I don’t know, but the “we can change the constitution” argument doesn’t feed the bulldog. The practical fact is, we can’t, and even when it’s considered, what do we get? Useless and evil constructs like Flag Burning Amendments and Gay Bashing Amendments. The process is seriously broken. What you see now in terms of any process to amend is a gross insult to original intent, no matter how you slice it.

  12. 12
    Kimmitt says:

    “Do originalists place more primacy on the bill of rights than they do the subsequent 17 amendments?”

    I think it’s more that, with the exception of the 14th, the meanings of the other 17 Amendments are extremely clear. There’s not much to talk about.

  13. 13
    Stormy70 says:

    Considering the United States is a representative republic and not a pure democracy, the electoral college will not be abolished. The will of the people is being addressed by the representatives they elect for Congress. It seems like the only reason the electoral college is no longer considered necessary, is the winning of elections by Republicans in the South and the West. I don’t remember the complaining when the Democrats were in the majority, the cries for reform started after 2000. If one wants to change the constitution, then amend it. There is a reason it is a difficult process. It should not be easy to change the Constitution, or it’s power would shift to the government, instead of serving the people.

  14. 14
    ppGaz says:

    It seems like the only reason the electoral college is no longer considered necessary

    No, you have it exactly wrong. The only reason why Republicans are interested in the thing at all is because they now see it as a way to extend their power. People have been talking about it at for at least 50 years, and I know this because I conveniently have a memory that goes back at least that far.

    Sentient people, that is. People, say, outside of Texas.

  15. 15
    ppGaz says:

    It should not be easy to change the Constitution

    Duh. Neither should it be impossible. Neither should it be something that is only possible when a divisive atmosphere, the direct result of one half of the country declaring moral and social war on the other half, lets the current winners start using it as a weapon in that war. As I said, the process is broken.

  16. 16
    ppGaz says:

    power would shift to the government, instead of serving the people.

    A member of the Party of Eternal Life for Terri Schiavo lectures on “serving the people?” The Party of the Patriot Act lectures on “serving the people?” The Party of the Flag Burning Amendment lectures on “serving the people?” The Party of Official Sanctity and Control of Marriage lectures on “serving the people?” The Dobson Party lectures on “serving the people?” The Party of Big Banking Fucks People In Trouble Because They Can Get Away With It lectures on “serving the people?” The Party of Tax Breaks for the Rich lectures on “serving the people?” The Party of Let’s Keep America The Last Propserous Country on Earth Without Healthcare for Millions lectures on “serving the people?”

    [ fingers in ears ] I can’t hear you!

  17. 17
    wilson says:

    What do we get in the dysfunctional atmosphere of today? Flag-burning amendment. Gay-bashing amendment.

    Obvious question: What would be a better of “functional” amendment procedure?

    One might suggest an iniative procedure (with 66% or so needed to pass a constitutional amendment). Iniatives of that sort are uses in California to enact things like Proposition 13 (capping propety taxes). Cure may be worse than the disease.

    The Europeans had no success with the “put it to the vote of all the people” approach.

    One could allow a super majority of Congress to amend. Not sure I like that better that what the framers came up with in 1787 – too easy to skew results with lobbyist money.

    One could say a majority of the Supreme Court can amend – but where is the democracy in that?

  18. 18
    SayUncle says:

    Wow, that’s about the most convoluted piece of reasoning I’ve seen in a long time.

    Using your logic in an utterly asinine way was kind of the point. I didn’t give my position but was calling yours out.

    If you don’t think that originalism is about narrowing the view of the document to one which can be argued to be congruent with “intent,” then what do you think it is about?

    Again, crap. My position is that we have a Constitution and we should, you know, follow it. Yours, if taken to the logical conclusion, seems to be the Constitution gets in the way of what you think is better for other people, so we should selectively ignore it.

    I ain’t buyin it.

    You don’t have to. Sadly, the courts have rendered Amendments one through 10 (except maybe 3) pretty much non-existent.

  19. 19
    SayUncle says:

    ETA: we should selectively ignore it since it’s too darn hard to change it.

  20. 20
    ppGaz says:

    My position is that we have a Constitution and we should, you know, follow it.

    Yeah, but the problem is, everybody thinks that “their way” is following it.

    I still can’t figure out what your position is. Are you fer originalism, or agin it? And if fer, what do you take it to be?

  21. 21
    Bernard Yomtov says:

    You asked

    Why do you want the electoral college overhauled? (Not snarky, really would like your views, please.)

    I gave two reasons, and you responded with this:

    Considering the United States is a representative republic and not a pure democracy, the electoral college will not be abolished. The will of the people is being addressed by the representatives they elect for Congress. It seems like the only reason the electoral college is no longer considered necessary, is the winning of elections by Republicans in the South and the West. I don’t remember the complaining when the Democrats were in the majority, the cries for reform started after 2000. If one wants to change the constitution, then amend it. There is a reason it is a difficult process. It should not be easy to change the Constitution, or it’s power would shift to the government, instead of serving the people.

    So I guess you really didn’t want to know. My fault. I should have known better than to give a rational response to your question.

  22. 22
    SayUncle says:

    Are you fer originalism, or agin it?

    I’m fer strict constructionism, in that it means what it says it means (of course, that should denote that it means what it says it means in the language it was written in as some meanings have since changed).

  23. 23
    Stormy70 says:

    First, there’s the obvious problem that a candidate can lose the popular vote and still be elected.

    Perhaps even more important is the fact that the Electoral College effectively disenfranchises huge numbers of voters. Texas Democrats and Massachusetts Republicans had essentially no say in the last Presidential election. And of course this is also true of members of the minority party in all but the “battlegound” states. Do we really want a system where the voters in only a small number of states effectively elect the President?

    Sorry, I missed it. They did have a say, but their side lost. They were still able to vote. The last election was close, and the focus was on a small number of states, but that has not been the same in past elections. The popular vote will shift the power to voters in New York, Florida, California, and Texas. Wouldn’t that disenfranchise all the other little states? There has only been two instances of the popular vote being opposite of the Electoral College, so I don’t see it as a problem. Lots of Texas Republicans didn’t bother to vote in the 2000 election, because Bush was a lock on the state, anyway. Plus, the election was not a popular vote winner takes all election, which would have changed the way the voters behaved. There is no way to say who would have won the popular vote in 2000, if the rules were different at that time. It is unknowable.

  24. 24
    Don Surber says:

    “You’re on a lifeboat, but it can only hold 8 of the original 10 amendments without sinking, killing your whole family. Which ones go?”

    Pretty easy question. The Third: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

    Not a problem today.

    The Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Made redundant by the 10th Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

  25. 25
    ppGaz says:

    There is no way to say who would have won the popular vote in 2000

    Uh, the person with the most votes, maybe?

    What a radical concept. But no, a few hillbillies in a few of those “fairly treated” little states should have more say. Great idea.

  26. 26
    ppGaz says:

    I’m fer strict constructionism

    Ah yes, that old ruse.

    construction — the act of interpreting, or explaining.

    Strict construction, as pimped by the right, has never been about “means what it says.” It has always been about trying to co-opt the right to interpret what it says.

    Let’s all write our 5,000 word essays on what “cruel and unusual” means. Strictest construction gets two movie passes. Let the games begin.

    Maybe your “strict construction” isn’t of that variety, but the now-commonly-held view of it definitely is.

    In other words, it’s fake. Like I said, I ain’t buyin it. I know when my leg is being urinated on, and the urinator is telling me it’s raining.

    Okay, let’s strictcly construct: I take the phrase “blessings of liberty” to mean “the government should leave me the hell alone.” For example, the government should not be in the business of telling me who I can marry; that’s a church matter.

    Are we on the same page so far?

  27. 27
    SayUncle says:

    I recommend you try again:

    “Strict constructionism is a philosophy of judicial interpretation and legal philosophy that holds to the meanings of words and phrases as used when they were written down. Adherents look strictly at the text in question rather than relying on metaphysical ideas such as natural law, or by trying to glean legislative intent from contemporaneous commentaries or legislative debate. “

  28. 28
    SayUncle says:

    And you’re now changing the discussion, which was the inherently weak nature of your argument that the constitution should mean what you say it means because it’s so hard to change.

  29. 29
    Sojourner says:

    I can’t believe people seriously think that any of the SC justices are strict constructionists. Inconsistencies in their use of the arguments demonstrates otherwise.

  30. 30
    SayUncle says:

    Sojourner, on that we agree.

  31. 31
    ppGaz says:

    weak nature of your argument that the constitution should mean what you say it means because it’s so hard to change.

    Uh, no, I apologize for your inconvenience in misunderstanding what I said.

    There are two points that you are managing to knot up.

    One, the constitution never “means what it says.” It means what someone says it means. What process that person uses to make that determination, notwithstanding. Under the umbrella of that reality, I assert that “originalism” is just a branding exercise, in which a particular sort of interpretation is said to be (x), and further said to be (better than y). I don’t take either of those as a given, because in actual practice, they just mean whatever the speaker needs them to say in order to justify his position. In that regard, a method is better than no method, but I don’t find “originalism” to be a respectable method, for the reasons stated.

    Two, the “you can change the constitution” argument, which is used as a deflection from my number one, above, is moot. Sure, the constitution says you can amend it.

    So, let’s see you amend it. You can’t. Therefore, the argument is an academic one. In reality, it doesn’t work.
    Right now you have a government that is completely dominated by one party, and it can’t seem to get an amendment process going with any traction. Whether that is because the amendments it pimps are worthless or not, I’ll leave to others to decide. I’ve made my position on them quite clear.

  32. 32
    Biff says:

    Not only is original intent always debatable, it is also unsustainable as a first principle. You’d have to convince me that the Founders would have been content to see the United States remain frozen in time, an anachronism, while the world spun off into infinite varieties of change around it.

    This is exactly right. Consider the 14th amendment, “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” This was intended to protect blacks from government discrimination. At the time, no one suggested that it would protect women from discrimination – does that mean we shouldn’t read it that way today?

    For that matter, no one thought at the time that the amendment would protect whites either. During Reconstruction, there was plenty of government discrimination in favor of blacks, and understandably so. So shouldn’t an originalist say that the 14th has nothing to say about affirmative action? Yet the folks who call themselves originalists routinely argue that state affirmative action is unconstitutional discrimination against whites.

    The point being, that often the intent of a law is to lay down a principle, which must be applied to changing circumstances over time.

  33. 33
    SayUncle says:

    pp, Glad I understand now. That’s much more coherent. i disagree. It in fact says what it says. However, its application in certain situations depends upon what someone interprets what it says to mean. As you said, cruel and unusual or unreasonable are definitely open to interpreation. However, congress shall make no law and shall not be infringed are not so much.

  34. 34
    SayUncle says:

    And your rant about the second amendment actually fit my previous understanding of your position, which seemed to be ‘I don’t like stuff that goes bang, so there is no second amendment.’

  35. 35
    DougJ says:

    As long as we’ve got the Second Amendment, things will be fine. Real freedom is the freedom to protect oneself.

  36. 36
    ppGaz says:

    i disagree. It in fact says what it says.

    Well, we’re saying two different things, I think, but we don’t have to disagree. You’re saying that “it says what it says.”
    I’m saying “it says what it says, but what it means is up to whoever has the authority to interpret it.”

    You’re right, but so am I. I take original meaning to be an academic exercise. But alas, I live in reality, where one person’s academic understanding is another’s misunderstanding.

    Well, that’s the American dilemma.

    Now ….

    your rant about the second amendment actually fit my previous understanding of your position, which seemed to be ‘I don’t like stuff that goes bang, so there is no second amendment.’

    I think this is in response to someone else. I have no beef with the Second. I’m a gun owner and I have no beef with responsible ownership and use.

  37. 37
    DougJ says:

    Ppgaz, maybe if you spent a little more time at the range exercising your Second Amenment rights, you wouldn’t be ornery all the time. There’s nothing like firing off a few rounds to relieve tension.

  38. 38
    cfw says:

    I like the 2d as well as anyone, but am not troubled with laws saying private ownership of strictly self defense arms (akin to what existed in 1787) is all the framers had in mind.

    Private ownership of cannons, .50 cals, grenades, plastic explosives, etc. has no protection under 2d, yes?

  39. 39
    DougJ says:

    “Private ownership of cannons, .50 cals, grenades, plastic explosives, etc. has no protection under 2d, yes?”

    Uh, yes they do have protection. You need some serious firepower to take down those black UN helicopters ;)

  40. 40
    SayUncle says:

    I think this is in response to someone else. I have no beef with the Second. I’m a gun owner and I have no beef with responsible ownership and use.

    Did you not say something about nukes and bazookas and how the founders never envisioned them? That is a dangerous precedent. Apologies, however, if i ‘interpreted’ what you meant incorrectly :)

  41. 41
    Stormy70 says:

    Nice thread, let’s all go and pick out china together.

  42. 42
    ppGaz says:

    Did you not say something about nukes and bazookas and how the founders never envisioned them?

    I did, but it was just an example of how the reality of today is not a good fit with the reality of 1790. As reality changes, so must the understanding of the law. Which was more or less my point. Without an evolving understanding, the text is just …. an anachronism. Now we’re back to where we started.

  43. 43
    ppGaz says:

    Ppgaz, maybe if you spent a little more time at the range exercising your Second Amenment rights, you wouldn’t be ornery all the time. There’s nothing like firing off a few rounds to relieve tension.

    Yes. Now if you will just step out from behind that tree….

    Nice thread, let’s all go and pick out china together.

    Drinks are on me.

  44. 44
    DougJ says:

    Ppgaz, I hand you a straight line and that’s what you do with it. No wonder you guys lose all the elections.

  45. 45
    SayUncle says:

    I did, but it was just an example of how the reality of today is not a good fit with the reality of 1790. As reality changes, so must the understanding of the law.

    I disagree. The understanding shouldn’t change, the law should.

  46. 46
    ppGaz says:

    I disagree. The understanding shouldn’t change, the law should.

    All things happen in the fullness of time.

  47. 47
    ppGaz says:

    No wonder you guys lose all the elections.

    Drinks are on you.

  48. 48
    buckaroo says:

    Private ownership of cannons, .50 cals, grenades, plastic explosives, etc. has no protection under 2d, yes?

    Gee, Jefferson had cannons at the time (a whole ship full), .50 cals were a bit smaller bore than many of the rifles of the day. Besides, anyone with the proper checks can own/operate gernades, explosives, and fully automatic weapons.

    How about eliminating the high speed “assault-style” presses and internet and go back to the block press for news reporters?

  49. 49
    Sojourner says:

    How about eliminating the high speed “assault-style” presses and internet and go back to the block press for news reporters?

    Are we having a problem with murders due to presses and the Internet?

  50. 50
    BoZ the Rider says:

    My question on the Constitution is where Congress has come in and made laws on things like free speech, right to bear arms, etc. They aren’t allowed to do that, so how have they gotten away with it? I believe the Constitution itself says

    AMENDMENT I
    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    AMENDMENT II
    “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.”

    Somehow, I think those instructions were written very very clearly, and in 2005 they mean the same thing as they did in 1790. So why are there laws presiding over them?

    As for free speech, here’s how much I know about that:

    I personally know someone currently in jail for being a huge protestor of the Patriot Act. She was a famous immigration lawyer (received an award from O’Connor actually), and she knew what the Patriot Act would do. Soon after publically speaking out against it, the government started to investigate her. It wasn’t until their agents set her up that they got her to do something slightly illegal. Her family has been ruined by all this through the financial burdens and betrayals from within. Family and friends turned on all them to protect themselves. I didn’t know about this until a few months after she was sentenced. Her daughter and I were great friends in high school, and she’s a smart girl who was attending a good college. Now she can’t afford to go to school, and works in the wonderful service economy waiting tables and living with 4 other people in order to survive.

    As for the electoral college…. The idea that a handful of people can decide the President defeats the purpose of a democratic system. Yes, Congress is where our personal representatives are, but the President should represent the entire nation. I’m sorry for all the small states, but the power to rule comes from the people, and if you don’t have a lot of people you don’t have the power. After all, the electoral college comes from Feudal Europe where the nobles from small nation-states would elect the King. Does that sound like something you’d want?

    In a sense, the electoral college takes free speech and the right to choose my elected leaders away from people like me when the state is predominantly of one party. Even if 51% of the state voted one way and 49% the other, that 49% have lost their entire collective decision. If you want to live in a democratic republic, then the only thing that should matter is the popular vote.

    “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
    – Thomas Jefferson

  51. 51
    buckaroo says:

    Are we having a problem with murders due to presses and the Internet?

    Sure! If people were not allowed to offend anyone why would there be so many murders (ask a stupid question…)

    Are we having a problem with murder to to the high availability of baseball bats and knives?

  52. 52
    Sojourner says:

    Are we having a problem with murder to to the high availability of baseball bats and knives?

    I’ve seen no legislation limiting their use so I have to assume not.

  53. 53
    Otto Man says:

    My question on the Constitution is where Congress has come in and made laws on things like free speech, right to bear arms, etc. They aren’t allowed to do that, so how have they gotten away with it? I believe the Constitution itself says

    AMENDMENT I
    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    AMENDMENT II
    “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.”

    The two different formulations here are instructive. For free speech and religion, it’s “Congress shall make no law” — about as straightforward as it gets — but with the right to bear arms, it’s prefaced with the “well-regulated militia…” rationale, an introductory clause that sets, as a baseline, the existence of some regulation at all times.

    And yet there are people who claim that speech should be subject to government censorship while gun ownership is left completely unchecked. Odd.

    I don’t care much about gun control, but the Wayne LaPierre line in the sand, rejecting any form of gun control, is just ridiculous. You want a strict constructionist reading? It’s right there — “well-regulated.”

  54. 54
    buckaroo says:

    I’ve seen no legislation limiting their use so I have to assume not.

    It seem’s to me that that senator from California wanted all knives “not of a cullinary use” banned.

    As to the press causing murders, how about the Watts riots? If the First amendment was restricted to communication at the time, block press fliers showing the Rodney King beatings would never have reached the “masses” and the riots would have been unlikely.

  55. 55
    Otto Man says:

    Oh, and if you want an originalist reading of the Second Amendment, a reading of the text and knowledge of its circumstances unmistakably points out that private gun ownership was only allowed because it was crucial to the effectiveness of the militia. Now that our military has abandoned the Bring Your Own Gun approach, then, according to the dictates of strict construction, all private gun ownership should likewise be abandoned.

    It’s funny though, you never see strict constructionists rule that way.

  56. 56
    buckaroo says:

    …rationale, an introductory clause that sets, as a baseline, the existence of some regulation at all times.

    If you understood usage, “well regulated” at the time meant well drilled, i.e. knowledgeable in the use and proficient with fire arms. The first clause of the Second is what anti gun people alway try to twist into making this amendment a right of the States (states _don’t_ have individual rights).
    Consider a phrase:
    A well read electorate being necessary to the continuance of an informed election, the right of the people to have and read books shall not be infringed.

    Please quote the amendments correctly, the Second has only one comma…

  57. 57
    buckaroo says:

    Oh, and if you want an originalist reading of the Second Amendment, a reading of the text and knowledge of its circumstances unmistakably points out that private gun ownership was only allowed because it was crucial to the effectiveness of the militia. Now that our military has abandoned the Bring Your Own Gun approach, then, according to the dictates of strict construction, all private gun ownership should likewise be abandoned.

    So Madison’s original wording:
    “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.”
    was just a typo?

    Why would “the people” be affirmed a right that “shall not be infringed” only to _really_ mean “until we create a government controlled military that nullifies this right”??

    Face it, you can’t stand having citizens of this country taking responsibility for their own safety and protection. Hillary’s village and the Leftists know how to take care of us will see to all our needs.

  58. 58
    Kimmitt says:

    Face it, you can’t stand having citizens of this country taking responsibility for their own safety and protection.

    Dude, black helicopter.

    More seriously, the US has the highest homicide rate in the industrialized world almost by an an order of magnitude. Is it the guns? The Swiss are tremendously well-armed, and they don’t have our problem. Is it the lack of guns? The Japanese are not at all armed, and they don’t have our problem.

    I dunno. It seems to me that this is one of those places where Federalism is much more useful; Chicago and New York have every reason to restrict commerce in firearms, while rural Nebraska has every reason not to bother. If the Federal Government can set up an overall structure which is consistent with both high regulation in some areas and low regulation in others, I think we can get somewhere useful.

  59. 59
    Sojourner says:

    As to the press causing murders, how about the Watts riots? If the First amendment was restricted to communication at the time, block press fliers showing the Rodney King beatings would never have reached the “masses” and the riots would have been unlikely.

    Are you one of those people who blame the rock music groups for the stupid things their fans do?

  60. 60
    buckaroo says:

    Are you one of those people who blame the rock music groups for the stupid things their fans do?

    Heh! You seem to blame pieces of metal for stupid things criminals do. Are the evil mind control waves from all the firearms urging you to kill?

  61. 61
    buckaroo says:

    Dude, black helicopter

    Just poking fun at CFW for thinking the Framers suggested the Second only refers to firearms available in 1787. I countered asking that maybe they only intended the First to apply to block printing presses.

    Chicago and New York have every reason to restrict commerce in firearms, while rural Nebraska has every reason not to bother. If the Federal Government can set up an overall structure which is consistent with both high regulation in some areas and low regulation in others, I think we can get somewhere useful.

    It seems to me the metro areas would do better to restrict criminals instead of letting them loose. Anti gunners blame import of firearms from the surrounding states as a cause of the horrific murder rates in the nations capital. Funny how the surrounding states with the “easy access” are not similarly overrun.

  62. 62
    Sojourner says:

    Y

    ou seem to blame pieces of metal for stupid things criminals do.

    Nope. But they sure as shit make it a lot easier than a bat, knife, or printing press.

  63. 63
    Kimmitt says:

    It seems to me the metro areas would do better to restrict criminals instead of letting them loose.

    It seems to me that we should do more than one thing, all things considered.

  64. 64
    buckaroo says:

    Nope. But they sure as shit make it a lot easier than a bat, knife, or printing press.

    Funny you say that. “Personal weapons” (i.e.hands, fists, feet, etc.) were used in 30.7% of violent crime in 2003 according to the FBI UCR. Knives, 15.2%, “Other” weapons 27.3% and firearms 26.9%

    It seems we can agree that criminals are stupid. If firearms are so much “easier” than other weapons, it seems the smart criminal would use them.

    From what deep dark nether region do you find your information?

  65. 65
    buckaroo says:

    It seems to me that we should do more than one thing, all things considered

    Sure seems like a good thing.

    Any suggestions?

  66. 66
    Sojourner says:

    Funny you say that. “Personal weapons” (i.e.hands, fists, feet, etc.) were used in 30.7% of violent crime in 2003 according to the FBI UCR. Knives, 15.2%, “Other” weapons 27.3% and firearms 26.9%

    Check out the death rates, not just the percentage of use.

  67. 67
    BoZ the Rider says:

    Glad to see I’ve sparked some conversation last I stopped in.

    “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.” -Plato

    The Founding Fathers knew what they were doing. They had some of the most educated men in the world to help them. The reason they didn’t want Congress to make laws on the first amendment items was that to do so is the first road to tyrany. Unfortunately the Supreme Court is a failure as a defender of such a precious document.

    The second amendment still applies. What would you do if a foreign nation invaded the country? Would you run, or would you do as the Iraqis have done and fight them? The militia still exists so long as we have the weapons and will to fight. And it’s designed to do more than repel attacks from our enemies, but also as a means to take down those people in Washinton should the need arise.

    As Thomas Jefferson put it, the great thing about the second amendment is that it won’t be needed till it’s taken away.

  68. 68
    Otto Man says:

    If you understood usage, “well regulated” at the time meant well drilled, i.e. knowledgeable in the use and proficient with fire arms.

    This is a misreading that’s pretty much been dismissed by most scholars of the 2nd amendment. But keep hope alive.

    So Madison’s original wording:
    “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.”
    was just a typo?

    Wow, moving that to the end of the sentence really does completely change the meaning. Again, my point was that Congress adopted a stunningly straightforward “make no law” standard for free speech and the establishment of religion. If they’d had the same absolutist attitude towards gun ownership, they would’ve said Congress could make no law in that realm either. They didn’t.

    And again, my point was that many “originalists” argue that restrictions on free speech are fine, contrary to the clear language of the amendment, while restrictions on arms owning are always wrong, despite the seeming invitation to do so in the second amendment.

    Why would “the people” be affirmed a right that “shall not be infringed” only to really mean “until we create a government controlled military that nullifies this right”??

    There was no “until” there, but it does make sense — as originalists claim they do — to understand the original context of such an amendment. It pairs nicely with the 3rd to suggest that there were concerns in 1789 whose circumstances have radically changed.

    Face it, you can’t stand having citizens of this country taking responsibility for their own safety and protection. Hillary’s village and the Leftists know how to take care of us will see to all our needs.

    Face it, you can’t stand taking part in a rational argument. What part of “I don’t care much about gun control” was too complicated for you? Let me say it again — I don’t care much about gun control. Read that slowly.

    If you’d like to have an argument with Hitlery and the strawmen you’ve used to make her Village People, have fun. But leave me out of it.

  69. 69
    Buckaroo says:

    This is a misreading that’s pretty much been dismissed by most scholars of the 2nd amendment. But keep hope alive.

    Wrong, Learn English dude!

    Again, my point was that Congress adopted a stunningly straightforward “make no law” standard for free speech and the establishment of religion.

    So you mean I can yell “Fire!” in a crowded theater?

    —to understand the original context of such an amendment. It pairs nicely with the 3rd to suggest that there were concerns in 1789 whose circumstances have radically changed.

    If you knew anything about the origin of the Bill of Rights, you’d know that the Constitution does nothing in the way of “giving” you anything, it merely states that these rights are pre-existing and are hands off. Why would a document be written that has a sole purpose of spelling out limits to federal government, only to add a phrase saying to the effect “oh, but we the Feds can limit this”. Read some of the court decisions on the BoR.

    The BoR is a package deal, not ala-carte. Don’t like part of it or don’t understand it then get the states together and change it.

  70. 70
    Buckaroo says:

    Check out the death rates, not just the percentage of use

    The biggest mass murder in this country was done with gasoline and matches. Come to think of it another mass murder was done nearly the same way some 60+ years ago in another country. Murder is murder and dead is dead. Inanimant objects rarely run around killing people.

    “Guns make killing people easier” and guns make defending oneself easier (which is orders of magnitude more likely to happen).

  71. 71
    Sojourner says:

    The biggest mass murder in this country was done with gasoline and matches.

    That may be. But by far the most preferred weapon of choice for the mini murders is the gun.

  72. 72
    Sojourner says:

    Um, make that mini mass murders.

  73. 73
    Buckaroo says:

    That may be. But by far the most preferred weapon of choice for the mini murders is the gun.

    Which reminds me of some lines from “All in the Family”

    Gloria: “65 percent of the people murdered in the last 10 years were killed by hand guns”
    Archie: “Would it make you feel any better little girl if they was pushed outta windows?

  74. 74
    BoZ the Rider says:

    The Bill of Rights was simply a measure to protect certain things that humans already had. Understand, the only reason for government is to protect the individual by limiting the freedoms in which people have in the state of nature. Anyone can do anything without government and society, including steal, kill, etc. We all can agree that the entire purpose that people got together was to protect the stuff they had, not to actually create culture and science and all that jazz?

    Yes, there is a difference between “shall make no law” and “not be infringed upon.” The difference is in word choices. While the first amendment is pretty clear and straight forward, the second amendment isn’t so strict. It does give the right of the government to impose registration of weapons and criminal background checks.

    The part that gets messy with criminals however is that they lose the right to own weapons. I would defend this because to be a criminal is to break the contract that is the Constitution. This is also defended by the Fifth Amendment:

    ‘…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    You can’t have your liberty and property taken without the due process of law, which means that with due process of law you can have liberty and property taken. However, Amendment Eight defend’s the individual from cruel and unusual punishment. This Amendment gives even criminals power by limiting the ability of the government to punish people, and is thus not exactly a personal right which can be taken away but a regulation on the government.

    Anyone is welcome to disagree with the Founding Fathers, but the words are there, and if you don’t like it thats your business. Like Buckaroo says, it’s a package deal. This is the contract that you’ve made with the government by staying here, using the resources, and paying taxes. If you can’t stand it so much you want to take other people’s rights away, then please leave the country and go somewhere more appeasing.

    To take away our rights is to impose oppression on us. But it doesn’t work in reverse; by it’s very nature, having a right cannot be oppression. When a police officer says “you have the Right to remain silent,” it isn’t a threat, it’s the 5th Amendment!

  75. 75
    Sojourner says:

    Notice that the militia part is carefully ignored.

  76. 76
    Buckaroo says:

    Notice that the militia part is carefully ignored.

    Yep, no need for repetition. The militia is already covered under Title 10 of the USC.

  77. 77
    BoZ the Rider says:

    I haven’t ignored the militia. I specifically said:

    The second amendment still applies. What would you do if a foreign nation invaded the country? Would you run, or would you do as the Iraqis have done and fight them? The militia still exists so long as we have the weapons and will to fight. And it’s designed to do more than repel attacks from our enemies, but also as a means to take down those people in Washinton should the need arise.

    A militia is a citizen army, everyone knows that. The thing is, with a Federalized army, there isn’t a current need for a militia. Militia’s aren’t as well trained or armed as a real army. That doesn’t mean some time in the future there won’t be a need for individuals to join together and fight.

  78. 78
    Buckaroo says:

    Many people make a large distinction today between a militia and the army. The militia really includes both (the organized “army” and the unorganized “all able bodied men…”) according to Title 10.
    Qoutes from the Founders however clearly state one of the purposes of armed citizens is to prevent the formation of a controlling standing army (i.e. we the people won’t be disarmed and governed by a despots armed forces).

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