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Saturday, October 22, 2005 - 5:49amSanction this postReply
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Perhaps they intuit that if bloggers are 'reporters' or 'journalists', then everyone is, or can easily be...

And if everyone is, well then....... talk about putting the bite into the First Amendment...

(Edited by robert malcom on 10/22, 5:51am)


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Saturday, October 22, 2005 - 6:29amSanction this postReply
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Saturday, October 22, 2005 - 8:40amSanction this postReply
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You would think the Republicans would be all for freedom of speech for bloggers, given the recent example of a blogger exposing the fake Bush National Guard documents that CBS News reported on.  There's something to be said for reporting by people who are not "real journalists."

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Saturday, October 22, 2005 - 11:02amSanction this postReply
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A little knowledge, and a predilection to bias are dangerous things

The headline for this article is:  Senators: Bloggers may not be true journalists.

The headline added by Mr. Reed for the purpose of mischief,  Republicans: No Internet in 1791, So First Amendment Not For Bloggers,  illustrates his gift for propaganda.  It is pure deception.  The bill is co sponsered.  Lugar is the only Republican.   The 4 other sponsors are all Dems  Mr. DODD of Ct, Mr. NELSON of Florida, Mr. JEFFORDS of VT, and Mr. LAUTENBERG of NJ.

The real issue is not about partisanship, what some Democrat or Republican thinks; the fear should be (among thinking adults) that giving Congress the power to define who is and isn't a journalist could lead to the licensing of journalists.


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Saturday, October 22, 2005 - 11:05amSanction this postReply
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As an aside, the big picture tool cnet uses is really neat.

Sarah

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Saturday, October 22, 2005 - 11:20amSanction this postReply
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Robert Davison,

I apologize for missing those. You are, indeed, right. I've edited the headline to reflect this. Thank you for the correction.


(Edited by Adam Reed
on 10/22, 11:24am)


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Saturday, October 22, 2005 - 3:14pmSanction this postReply
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One of the more egregious notions pushed by conservatives in their quest for "originalism" and "strict constructionism" is their effort to obscure and evade the fact that the U.S. Constitution is not a document that purports to exhaustively list the rights of man.  To the contrary, it is a document that was specifically intended to define and delimit the powers of GOVERNMENT, not the rights of man.

In fact, the Bill of Rights was added to the constitution only after Madison included the ninth amendment, which makes clear the fact that the omission of a right from the constitution shall not be "construed to deny or disparage" other rights of man. The founders were rightfully concerned that listing any specific rights would be construed so as to deny any others.

Thus, it is not incumbent on those of us that seek to defend free speech to find a clause in the constitution indicating that bloggers should be shielded.  It is incumbent on those that seek to censor bloggers (or anyone else for that matter) to find, in the constitution, an authorization for such action by the government.

This same pattern applies to all of the other rights conservatives claim have been improperly invented by the judiciary, such as the right to privacy and the right to abortion.  The fact that such rights are not mentioned in the constitution is wholly irrelevant.  What is relevant is that the constitution does not authorize government limitation or interference with these rights. 

Conservatives, despite their rhetoric about advocating freedom, are in fact seeking to formally establish the essence of statism -- namely the sovereignty of the state over the individual -- by establishing the notion that the citizens act only with the permission of the constitution, while the government acts by right.  This is a truly monstrous inversion and is most definitely NOT the founder's original intent.


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Sunday, October 23, 2005 - 3:08amSanction this postReply
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Reply to Post 6

There is much merit in what you wrote, but I have some comments and disagreements.  As an aside, I begin by stating I wish we had a government of strictly limited power and a guarantee of person liberty in the Objectivist sense.  I assume I share those values with you.

It was certainly the initial intent to limit the power of government, as you observed.  Those limitations failed long ago.  By the time of FDR's New Deal, the FDR appointed Supreme Court gutted what remained of the limitations, and then in the 1960's the liberal Warren Court buried the carcass.

The Supreme Court has rarely cited the 9th amendment's reservations of rights clause to mean much of anything-----other than one of the things they skip over on their way to the 14th amendment.   The 14th Am's Privilege and Immunities clause should have applied the entire Bill of Rts to the States but even the most liberal courts have held to the contrary and relied on Selective Incorporation of a few rights they deemed worthy..

In many of the interpretations of personal liberty, I strongly agree with the result of the liberal members of the court; but rarely their method. 

In defense of conservatives (on a limited point):  I agree with the conservative view that the Supreme Court has become a force that is not bounded by the constitution.  At times the court is a 5 vote dictatorship.  That is why many conservatives are fighting for "strict interpretation" and/or "original intent" to put some limits on the courts power.

Yes I applaud when the court rules that a person can carry the message "Fuck the Draft" on their jacket.  However, I use the same F-word when the same court expands government power and limits property rights.  Even the most liberal courts have held the act defined by the F-word, can be found to be obscene, depending on community standards.

Herein, I use the word "liberal" in the current political sense.  The "classic liberal" is far more in line with the views you expressed.  The liberal courts have posed far more danger to freedom than conservatives. It is liberals that are constantly attempting to limit speech as "offensive" or 'insensitive" or "harassing."   

You say those that want to limit the rights of bloggers should have the burden of proof.  Personally, I agree with that.  I assume you agree with me, that no such limitation should exist, in the US Constitution or under any theory of natural rights.   However, the limits were put in place long ago by the Warren Court, the expansion of the Interstate Commerce Clause and the creation of the FCC.  We lost the principle long ago regarding whether the government can control such speech; it is simply the case by case applications that remain.

I agree with the conservatives in this limited sense,--- that I can put more trust into a document that is strictly interpreted, and that can be amended, than I can into what ever a Ginsburg, Beyer or Souter find to be "essential to ordered liberty" in their personal opinion. 

At least I can attempt to control a conservative "strict interpreter."  I can attempt to change a flawed "strict interpretation" by changing the language of the document they interpret.  I can do nothing to control the liberals except hope that their whim of the moment suits me.  What can I even attempt to change when their opinions are based on their "feelings" regarding what is right. 

To paraphrase Lincoln, "I fear some conservative ideas all the time, and all the conservatives ideas some of the time...";----but then I say the same about liberals.  It is only many libertarians and Objectivists that I agree with most of the time, with respect to rights.

As to your mention of "statism" I feel that the biggest threat is on the left. The liberals establishment of big government has direct control over 50% of the economy and heavily regulates the remaining 50%.  The fact that the liberals have left me the freedom to use the F-word and watch non-obscene pornography is of little comfort. 

I don't disagree with your assertions that the conservatives want the "sovereignty of the state over the individual."  They do want to control many individual freedoms.  However, so does the left. 

A small point, is that probably even the most conservative originalist or strict interpreter would find a blog to be speech, however they might not find the blog to fall within "freedom of the press."   A larger point is that I believe a reporter should have no special right to not reveal sources.  I believe ALL individuals should be free from compulsion, in most situations, and the reporters need no special protection.  However that is too large of diversion to discuss further herein.

My discussion above, is more important to me than this final comment, because the above discussion relates to principles.  However, as a practical matter, it is the liberals that are attempting to control bloggers because the bloggers are further undermining the liberal's former stranglehold on the media. It is really more of a political issue than a first amendment issue to most politicians. 


I hope I had sufficient clarity to convey that I share your fear of the erosion of personal liberty.  I even agree that conservatives are to be feared, as is the left.  I am unaware of a single, solitary, justice who would interpret the constitution as it was intended, much less in an objectivist sense.  I thought your post was a step forward in the defense of liberty; I hope mine was the same.




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Sunday, October 23, 2005 - 7:08amSanction this postReply
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MS,

Conservatives, despite their rhetoric about advocating freedom, are in fact seeking to formally establish the essence of statism -- namely the sovereignty of the state over the individual -- by establishing the notion that the citizens act only with the permission of the constitution, while the government acts by right.  This is a truly monstrous inversion and is most definitely NOT the founder's original intent.
What you say has merit.  What is confusing, however, is that you level your comments at Conservatives specifically, as if  liberals and progressives are doing the opposite.

 


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Sunday, October 23, 2005 - 11:20amSanction this postReply
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Steve, you make some excellent points, and I agree with much of what you say.  Let me explain why I focus on the conservative threat.

 

I fully agree that the leftists/liberals are also intent on driving the stake of statism irreversibly through the heart of America.  However, there is an important difference: the liberals are not posturing as defenders of freedom, capitalism and limited government, as are the conservatives.  

 

Decades of such posturing has left much of the American electorate with the impression that conservatives are indeed defenders of capitalism -- and this is what makes them so dangerous.  Americans (for the most part) see liberals for what they are -- power-hungry politicians that want to expand government – and are appropriately suspicious of their proposals.  Unfortunately, they do not realize that the same is true of conservatives.

 

Thus, as John Lewis points out, when a Hillary Clinton proposes a "government-funded national healthcare plan", the public sees it for what it is: a blatant power-grab and the establishment of socialized medicine.  And seeing it as such, the American people (most anyway) reject it.

 

But let a George W Bush propose a prescription drug benefit that promises to bankrupt us, and the public (by and large) does not object.  Just as they do not object when he and a Republican-controlled congress expand government spending to levels the liberals can only dream of, and would never get away with. Just as they do not object when he firmly cements the federal government’s influence over the content of our children’s education (at least for those of us who cannot afford private schools).  Just as they do not object when this purported champion of free trade imposes tariffs on steel imports.  Just as they do not object when he signs into law the so-called Campaign Finance Reform act, provisions of which blatantly violate the first amendment. 

 

Had the liberals pushed these same programs, I believe there would have been significant public resistance.  (I realize that some conservatives are up in arms over these things; but they are a minority, as far as I can tell.)

 

In defense of conservatives (on a limited point):  I agree with the conservative view that the Supreme Court has become a force that is not bounded by the constitution.  At times the court is a 5 vote dictatorship.  That is why many conservatives are fighting for "strict interpretation" and/or "original intent" to put some limits on the courts power.

 

Perhaps, but is it really the court’s power they seek to limit?  If you listen to the objections coming from conservatives over the Miers nomination, what do you hear?  You hear that they want assurances that the nominee will be a “truly reliable conservative” that can be counted on to do the following:

 

1) Vote to abolish a woman’s right to control her own reproductive functions (by voting to overturn Roe v. Wade)

 

2) Vote to put prayer back into the public schools and the Ten Commandments back into courtrooms (by voting to overturn lower court rulings to the contrary)

 

3) Vote to abolish homosexual’s right to marry (by overturning lower court rulings to the contrary)

 

4) Vote to uphold the constitutionality of laws banning cloning and stem-cell research.

 

5) Vote to uphold the requirement that children say the pledge of allegiance, and vote to keep the phrase “under God” in that pledge.

 

These are the sort of issues where conservatives (at least the ones I read) get upset about court "excesses".

 

Now, conspicuously absent from their concerns are the nominee’s views on two recent, disastrous SCOTUS rulings: namely the ruling upholding eminent domain in Kelo v. New London, and the ruling upholding the constitutionality of the Campaign Finance Reform act.  If conservatives are truly interested in putting limits on government power, they should be demanding a nominee that would vote against these two decisions, instead of demanding a nominee that will uphold additional restrictions on our freedoms.  Yet, in the numerous articles I have read about the Miers nomination, I’ve yet to see a conservative mention these two decisions.

 

Have the conservatives launched an effort to amend the constitution and outlaw (or at least limit) eminent domain?  No, but they launched an effort to amend the constitution to outlaw gay marriage (see the Federal Marriage Amendment).  Have the conservatives tried to repeal the Campaign Finance Reform act?  No, but they have tried to amend the constitution to outlaw abortion (see the Human Life Amendment).  The examples are numerous.

 

Who poses the greater threat to liberty: conservatives or liberals?  For many years, I believed that the liberals were more dangerous.  However, the conservatives are rapidly changing my mind.  They have a talent for verbally championing freedom, limited government and capitalism -- while actively destroying all three.  And they seem to get away with it.




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Sunday, October 23, 2005 - 3:22pmSanction this postReply
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Let me make this clear to all of you.

GEORGE BUSH IS NOT A CONSERVATIVE!
 
Conservative and Republican are not synonymous and neither are Liberal and Democrat.  Let me tell you this:  I work in DC for Conservatives at a place called the Leadership Institute.  My boss, Morton Blackwell, used to be Karl Rove's boss when he was younger.  So listen up, they hate George Bush and what the Republican Party is.  The only thing is is that they hate the democrats more.  All those criticisms ya'll been talking about, except for ass sex and abortion, they have a problem with also.  I don't know where Republicans stand half the time, on this internet and the 1st amendment I can tell you its almost a wholly Democrat thing with a token Republican.

Look at it this way, America has two parties (that matter), ya'll honestly think if there were more you'd have people like Ron Paul and Tom Delay in the same party with the likes of McCain and rest of his gang?  No.  So when you see a fool like this maverick Republican supporting stifling the speech of blogger, you really think he represents the party?

Anyway on this issue I fall squarely on the side of freedom of speech.  That said, let me explain why I don't side with the press. 

"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."

Thats the 1st amendment naturally; what I've always asked myself is why the press is signaled out?  If "or of the press" was left out wouldn't the press still be protected since they can't abridge the freedom of speech of anyone.  The best I can think of is that it was put there to remind people that written materials also fall under the first amendment, Period.  That is important because it points out one important thing, the press have no greater rights then the rest of us!  If I have knowledge of a crime and I refuse to tell the police about it, I'm guilty of conspiracy, aiding and abetting, and host of other crimes.  The whole bedrock of any investigation is to ask other people what happened.  Reporters aren't immune from that, if that know about a crime and refuse to talk about it, they're guilty as well.  It doesn't have a gotdamn thing to do about free speech.

I'm just waiting for the day when a reporter goes to Pakistan and interviews a guy who knows where bin Laden is and comes back to the states, publishes it, and refused to tell the feds who the guy is.  Maybe then ya'll realize this doesn't have nothing to do about the 1st amendment.


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Post 11

Sunday, October 23, 2005 - 6:50pmSanction this postReply
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Response to post 9,

Michael,

I think conservatives are the defenders of capitalism in the same way that Oren Boyle (spelling?) and James Taggert defended capitalism.  I support them only because they are the only force available to defend the "unknown ideal" of capitalism. 

It is difficult to use the labels of conservative and liberal, as they have no consistent meaning in normal usage.  However, I think it is the "religious right" conservatives that pose most of the dangers that you explicitly reference.  Even within that group, there are many religious conservatives that are fiscal conservatives and do not seek the path to statism. 

Decades of such posturing has left much of the American electorate with the impression that conservatives are indeed defenders of capitalism -- and this is what makes them so dangerous. 
 I disagree  with your assessment of the American electorate, but if you are correct, then I would agree with you.  However, I fear that Hillary might be the next president, if the conservatives are undermined. 

Bush is not a true fiscal conservative.  Bush is great when compared to Kerry or Hillary Clinton, but falls far short of even the flawed goals of fiscal conservatives, much less any true definition of capitalism.

I won't comment on all your points, as I am simply in general agreement with them.  I do think that your reference that SCOTUS decision on campaign finance reform is a great example of vanishing liberty.  It is particularly frightening that SCOTUS was limiting political speech.

HOWEVER, my intended main point (I admit I wasn't clear) was that strict interpretation is at least one way to control justices.  Many of the issues that we obviously agree on would be settled by a strict construction of the Ninth Amendment, and on the enumerated powers of government.  I would greatly prefer a principled interpretation of rights, but I do not see a single justice anywhere who would provide such an interpretation. It hasn't happen in the history of SCOTUS.  Scalia is at least trying to interpret the document, not simply following some subjectivist sense of "fairness."  A few justices were good on some issues, such as Brennen's refusal to limit any speech as obscene.

You seem to demean strict interpretation and original intent, do you see a better method of restricting the judicial dictatorship?  


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Post 12

Monday, October 24, 2005 - 6:45amSanction this postReply
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MS,

I think you make the common mistake of personalizing the government, in this case in the image of Bush.  A president does not have that kind of power.  It is the congress that moves the nation's agenda.  A president may advocate, as in the example of Social Security, but if congress does not get behind a proposal by the executive it withers away.


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Post 13

Monday, October 24, 2005 - 12:16pmSanction this postReply
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You seem to demean strict interpretation and original intent, do you see a better method of restricting the judicial dictatorship?

  

 

 Steve, here are the potential problems I see with the notions of “strict interpretation” and “original intent”. 

 

For one thing, there are errors in the constitution.  What, for example, is the strictly interpreted meaning of statement 1 in section 8 of Article I, which states the “Congress shall have the power to collect taxes, duties, imposts and excises, and provide for….. the general welfare of the United States”.  One can argue that it authorizes a whole host of welfare-type programs.   And then there is statement 8: “Congress shall have the power….to regulate commerce among the several states.”  That statement would seem to authorize antitrust laws and the whole nightmarish collection of federal business regulations.

 

However, assuming the errors are corrected, I would certainly favor strict interpretation – provided we interpret the Constitution to be a limit on government power.  But with those errors in place, strict interpretation can work against us as well as for us. 

 

My main objection is to those that argue that "strict interpretation" means the states can pass any law that does not infringe the rights explicitly enumerated in the Constitution and its amendments.  A leading spokesman for this position is the judicial darling of the conservatives, Judge Robert Bork.

 

Bork disagrees vehemently with the 1965 case of Griswold v. Connecticut.  This case marked the first mention by SCOTUS of a right to privacy.  It involved a challenge to a Connecticut law that made the possession of contraceptives by married couples illegal.  Think about that.  A law that made it illegal for married couples to own rubbers.  SCOTUS said that a right to privacy was implicit in other rights and overturned the law on that basis.

 

As far as Bork is concerned, such a law is perfectly acceptable.  If the state decides that you cannot use contraceptives, then that is the state’s prerogative, because a "strict interpretation" of the constitution does not reveal any right to privacy.  (As an aside, I agree that “right to privacy” is not the best articulation of the principle involved.  It would have been far better to declare that government’s only legitimate function is defending individual rights and since no violation of rights is involved in using contraceptives, it is none of the government’s damn business.)

 

So as far as Bork is concerned (and a large collection of conservatives), state laws against contraception, abortion, pornography, gay marriage, teaching evolution, genetics research, etc are fine, because the constitution – strictly interpreted – does not grant anyone the right to these things.

 

Explaining why he opposes Roe v Wade and the recent decision that threw out the Texas sodomy law, Bork said:  “The Constitution has nothing in it that would prevent a state from allowing homosexual sodomy, from allowing abortion or from disallowing homosexual sodomy and disallowing abortion. Those are topics simply not addressed by the Constitution.”

 

As far as Bork is concerned, since a “strict interpretation” of the constitution says there is no right to be homosexual, the state of Texas can throw you in jail for it; they can give you a cell next to the criminal who was caught teaching evolution..

 

If we endorse the concept of “strict interpretation”, how do we prevent the Borks & conservatives from using it to limit freedom instead of limiting government?

 

There are similar dangers with the notion of “original intent”.

 

Conservatives, for instance, have been talking up a new book by Philip Hamburger called, Separation of Church and State.  This book purports to prove that the founders, while objecting to the notion of religion running the government, did not believe in a strict separation of church and state.  Thus, according to conservatives, “original intent” means there is nothing wrong with school prayer, displaying the Ten Commandments in the court room, teaching creationism, etc.

 

Mr. Hamburger might be right about the founders “original intent”.  However, this does not invalidate the notion of strict separation of church and state.  So, one obvious problem with “original intent” is that fact that the founders were by no means philosophically perfect.

 

A similar end-run around the second amendment has been attempted  many times.  Most recently, an Emory University researcher published a book claiming to prove that gun ownership by private individuals was actually uncommon in the late 1700s.  So in all likelihood, the “original intent” of the second amendment, according to this argument, was merely to grant the state’s the right to equip a militia, not to grant an individual right to own firearms. 

 

Fortunately, the study was found to be full of lies and errors and was eventually discredited. Unfortunately, this seemed to be the only grounds anyone asserted for dismissing the book.  No one stood up and asserted the right to own a gun regardless of what the founders “originally intended”.

 

“Original intent”, then, commits us to the views of the founders, whatever they are determined to be.  While many of their views are quite rational, others are not, and I do not know enough about them to know whether we would be better off under an “original intent” doctrine.  As with “strict interpretation”, how do we keep our enemies from using “original intent” against us?







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Post 14

Monday, October 24, 2005 - 12:31pmSanction this postReply
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Michael,
I'm inclined to agree with your goals and outlook, but one could argue that, regardless, the Constitution sets the framework of the laws of the land. Therefore if one believes something in it tends to work against support of individual rights, the proper course of action is to amend the Constitution - not to ignore it when it contradicts a desired result.  I don't have a settled view on the subject, but how else can we have rule by law? Of course, that's not to suggest we shouldn't break the law when it does violate our rights, but then we should be prepared to pay the price.

Your thoughts?

Jeff


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Post 15

Monday, October 24, 2005 - 12:53pmSanction this postReply
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Jeff,

Indeed, the right course is to amend the Constitution. But this was done already, with the 9th and 14th Amendments. The problem is that the advocates of "original construction" do not grasp the concept of principles - and since the necessary Amendments are too broad to be stated in terms of concretes, the "strict constructionists" simply ignore them. What solution is there for the problem of the anti-conceptual mentality?


(Edited by Adam Reed
on 10/24, 12:55pm)


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Monday, October 24, 2005 - 1:40pmSanction this postReply
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Adam,

Your points are well made and I thank you for the reminder.  The only cure for the "anti-conceptual mentality" is a philosophy of reason applied to the education business and, in due time it will follow, to the local, state, and federal governments.  But then, you know that already.

Jeff


Post 17

Monday, October 24, 2005 - 6:26pmSanction this postReply
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Reply to post 13

I generally agree with your statement of the problem.  The Constitution has been so misinterpreted that it is now a convoluted mess that is difficult to untangle.

The constitution is far from a perfect document, but to me strict interpretation is at least a start in the right direction.  [A better solution would be to amend the Constitution and then strictly interpret it.  However, I fear a constitutional convention at this point in our history.]

Adam Reed's post 15, correctly states the problem. 
What solution is there for the problem of the anti-conceptual mentality?
Of course it would be better to state the correct principles and then have the concepts applied by rational minds.  However, is there a single appellate justice capable of doing that? 

I imply from your knowledge of the subject that you know that Griswald was a staged case with no real controversy for the purpose of developing the right of privacy.  In my opinion Roe v Wade was one of the "Top 100" worst decided SCOTUS cases.

I believe in liberty and  a limited government.  Privacy is desirable, but I don't think it needs to be stated as a separate "right."  But it's better than nothing, so I support Griswald.  (At least Griswald is one of the few opinions to mention the Ninth Am.)

Roe was a poorly decided opinion, based on the viability of the fetus added to the hatched "compelling state interest / rational basis" structured analysis.  Women have a right to an abortion based on their right to control their own bodies.  The fetus has no rights until it is a separate entity; i.e., born.  What's Roe going to mean when viability occurs in the second week rather than the second trimester?

So I'm stuck. 


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Post 18

Monday, October 24, 2005 - 6:41pmSanction this postReply
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Michael S,

While many of their views are quite rational, others are not, and I do not know enough about them to know whether we would be better off under an “original intent” doctrine.
 If you are going to assert that certain ideas of the founders were not rational, you should take to time to 'know enough about them".  Jefferson has a lot to say, for example, about promoting the general welfare.  As to the commerce clause in the founder's day regulate meant to make regular (consistent) not to control.

Why do you fear States making laws of which you do not approv?. The feds do the same.  One can always depart the State, whereas leaving the country is a bit more onorous.


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Post 19

Tuesday, October 25, 2005 - 10:01amSanction this postReply
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If you are going to assert that certain ideas of the founders were not rational, you should take to time to 'know enough about them". 
Are you saying that unless I know the totality of an individual's beliefs, I cannot pass judgement on any one of them? 

Jefferson has a lot to say, for example, about promoting the general welfare.  As to the commerce clause in the founder's day regulate meant to make regular (consistent) not to control.

Good point.  However, Jefferson's views would not be relevant to the "original intent" of those who wrote the constitution; he was not even in the country at the time, as I recall, so he had essentially no input to the document at all.  In any event, if Jefferson's views are to be considered, we also have to consider Adams and the Federalists; I would not want their views to prevail on any constitutional issue involving freedom of speech. (Come to think of it, their view has prevailed. Damn.)

If your point is that we would certainly be better off being governed according to the founder's original intent, even if they were wrong on some points, then I agree completely.  The question is, what sort of "original intent" would be divined by today's crop of intellectuals, politicians, lawyers and professors -- all concrete-bound mentalities as Adam points out -- and where would it lead?  Would the Borks prevail -- and take us farther down the road to a theocracy? They would certainly argue that the founders intended this to be a "Christian nation". 

 
Why do you fear States making laws of which you do not approv?. The feds do the same.One can always depart the State, whereas leaving the country is a bit more onorous.
 
If the states may outlaw anything not specifically protected by the constitution, then the only rights we can invoke are the ones in the constitution.  This means that the constitution becomes a limitation on our rights, and not a limitation on the power of government.  This is the inversion I mentioned earlier, and its consequences are potentially disastrous. This has been averted by what the conservatives deride as "judicial activism" -- by SCOTUS inferring other rights implicit in the basic rights that are mentioned in the constitution.

I am not blind to what the feds are doing. As I mentioned earlier, the SCOTUS decisions upholding the Campaign Finance Reform law and expanding eminent domain in Kelo v. New London are terrible blows to our rights. But note that what happened in these decisions is actually the opposite of the court's earlier "judicial activism"; instead of construing our rights broadly, the court construed them ever more narrowly, by approving additional limitations on our freedom of speech and property rights.

In all of these cases, one may criticize SCOTUS for not adhering strictly to the constitution.  But do we want to condemn all such deviations?  Is it not better to advocate a broad interpretation of the constitution with respect to individual rights, identifying and upholding them even if they are not mentioned in the present constitution, while at the same time advocating a narrow interpretation of government power, restricting it to what is stated in the constitution.  I believe that was the original intent -- and I think it is philosophically correct.



 


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