Ted Kennedy quote for AndyFox

[Wake up CALL]

"It is not what the founding fathers intended", when asked his opinion on the recall election in California.

Literal interpretation or was he there like you?

[andyfox]

Which founding fathers? Like every politician, Mr. Kennedy uses "original intent" to justify his political agenda. Just because the right utilizes this more frequently doesn't mean the left is immune from the disease.

One could certainly make a case, however, that not many of the gentlemen at the Constitutional Convention wanted governors to be elected by the people. So Mr. Kennedy might be correct, but unintentionally so.

As for my being there, one doesn't need to be a chicken to recognize an egg.

[Wake up CALL]

[ QUOTE ]



As for my being there, one doesn't need to be a chicken to recognize an egg.

[/ QUOTE ]

True but being far left makes it easier to scramble that egg when discussing intent of long dead founders.

[HDPM]

Was he talking about the recall election or California itself? /images/graemlins/laugh.gif


It should be pointed out that the Founding Fathers did not intend that there should be a popular vote for senators. Candidates of Teddy's quality stand a better chance in the popular vote.

[andyfox]

"being far left makes it easier to scramble that egg when discussing intent of long dead founders."

Demonstrably wrong. Those who have invoked the concept of original intent have overwhelmingly been of the far right. The most notable example is the current Chief Justice of the Supreme Court. Neither Ted Kennedy nor Andy Fox decide on the constitutionality of laws passed by congress.

An example: in Wallace v. Jeffree, an Alabama school prayer case, Rehnquist used James Madison's argument in the First Congress against a national religion into meaning merely that Congress cannot promote a national church or prefer on sect over another. Madison said no such thing. The establishment clause did not prohibit Congress "from providing nondiscriminatory aid to religion," according to Rehnquist. How did he know this?

For one thing, he used fiction passed off as history. He claimed that among the establishments of religion that existed in the late eighteenth and early nineteenth centuryies was the one created by the Rhode Island charter of 1633 and lasting until 1842. But Rhode Island's charter of 1663 (he even got the year wrong) guaranteed religious liberty and neither as a a colony nor as a state did it ever have an establishment of religion.

There are many similar examples. The Court often gets its history wrong. This is because the justices, of all political stripes, reach a conclusion in accord with their politics and then invent history to justify their decisions. And those that invoke original intent are usually the rightists.

The most efficient egg scramblers are of the far right.

[andyfox]

Look, my argument against original intent is twofold:

1) It doesn't exist. The framers who remained active in national politics divided on one constitutonal issue after another: the removal power, the power to charter a corporation, the power to declare neutrality, the executive power, the power to enact excise and use taxes without apportioning them on population, the power of a treaty to obligate the House of Representatives, the power of judicial review, the power to deport aliens, the power to pass an act against seditious libel, the power of the feeeral courts to decide on feeeral common law grounds, the power to abolish judicial offices of life tenure, to name a few.

If the framers themselves couldn't agree on what the Constitution's original intent was, how can we possibly know what it is? There is no one original intent.

2) Even if we could agree on original intent, it would obligate us to interpret the Constitution in the way that the framers did, freezing its meaning as it was in 1789. This would make our Constitution ever more irrelevant.

And yes, I look at statements such as Ted Kennedy's with as much doubt as I do on those of Justice Rehnquist when either or them divine the framers' original intent.

[adios]

"Intent \In*tent"\, n. [OE. entent, entente, attention, purpose,
OF. entente, F. entente understanding, meaning; a participial
noun, fr. F. & OF. entendre. See Intend.]
The act of turning the mind toward an object; hence, a
design; a purpose; intention; meaning; drift; aim."

There was no purpose, there was no design to the Constitution? Enumerating broad constitutional principles in lieu of specific positions on those priniciples demonstrates an "intent." My quibble with your statement is that it's too vague. Intent regarding what? If someone states that government has no right to restrict the use of hand guns because such restrictions conflicts with the original intent of the framers of the constitution, the counter argument is that no the intent was to express a general principle about the right of citizens to bear arms. There's an arguement there over what the intent was not that there is or is not an intent. If there's no intent i.e. no purpose to the Constitution then its' worthless.

[andyfox]

There's the dictionary definition of intent and then there's the doctrine of Original Intent. Of course there was intent to do something. Where the framers wanted specificity, they indicated it in the Constitution. Where they wanted just general principles, they were less specific. It is on those less specific portions of the Constitution that the problems arise.

Those, particularly on the right, who oppose certain decisions of the court, claim that the justices that have liberalized our laws are violating the original intent of certain portions of the Constitution. They favor a strict constuctionist interpretation of the Consitution. My argument is that there is no way to know this original intent and that ambiguous wording cannot be strictly construed. They sometimes go back to the discussions at the Constitutional Convention as recorded by James Madison. But Madison recorded much less than 50% of the discussions and there was much disagreement over many issues. The framers who remained active in public life themselves disagreed over constitutional principles while they served the country.

There is no way that Ted Kennedy knows what the intentions of the gentlemen who met in 1789 were regarding Gray Davis's fate in 2003. On what evidence does he base his statement? I'll tell you: on none whatsoever. And even if he did know, it would be irrelevant 214 years later.

Did the framers want representatives in the House to be elected every two years? Aboslutely. Did they tell us what "equal protection" under the law means? Absolutely not.

[MMMMMM]

"Equal protection" doesn't seem like a very ambiguous phrase to me.

[andyfox]

What does it mean?

[MMMMMM]

"nor deny to any person within its jurisdiction the equal protection of the laws."

What exactly is unclear about this phrase? I see nothing ambiguous here.

Everyone is entitled to equal protection under the law; for example, andyfox shall not be subjected to unreasonable search and seizure while John Cole is subjected to unreasonable search and seizure. If the law protects David from being branded by Mason with a hot iron, the law shall also protect Mason from being branded by David with a hot iron. If the law prevents some backwoods sherrif from detaining brad indefinitely without charges, it shall also prevent this same backwoods sherrif from detaining Tom Haley indefinitely without charges.

[Munga30]

"for example, andyfox shall not be subjected to unreasonable search and seizure while John Cole is subjected to unreasonable search and seizure. If the law protects David from being branded by Mason with a hot iron, the law shall also protect Mason from being branded by David with a hot iron. If the law prevents some backwoods sherrif from detaining brad indefinitely without charges, it shall also prevent this same backwoods sherrif from detaining Tom Haley indefinitely without charges."

But M, those courses of conduct are not allowable against anyone under other constitutional provisions, laws, etc. Either those are without force but for the redundancy of the clause you quote, as you seem to argue, or you haven't (yet?) articulated its meaning.

[MMMMMM]

"But M, those courses of conduct are not allowable against anyone under other constitutional provisions, laws, etc."

Yes, you are correct they are not allowed under other laws, which is precisely the point: if someone is protected under any law(s), someone else within the same legal jurisdiction shall not be denied the right to an equal protection under the same law(s). That's exactly what the 14th Amendment means, as quoted:

"nor deny to any person within its jurisdiction the equal protection of the laws."

[brad]

but the whole thing is untrue which just goes to show constitution is no longer valid.

eg, affirmitive action, and the egregious asset forfeiture/seizure laws, just to name a couple of many many

[MMMMMM]

I don't think it shows that the Constitution is no longer valid, but it might show that some of our legislators and courts are illegally flouting the Constitution.

[andyfox]

According to original intent expert Robert Bork, the framers did not have in mind equality of the sexes, equality of persons of different national origins, equality of persons of different religions, equality of persons of differing mental or physical abilities. Only a ban on invidious racial classification. Bork believes only in a "level of generality" for determining the scope of the Consitution's provisions.

Do separate but equal schools ensure equal protection of the laws?

The equal protection clause is one of the most litigated clauses in our constitutional history because it's among the vaguest and the most important.

What, exactly, constitutes an abridgement of freedom of speech? an infringement of the right to keep and bear arms? excessive bail? cruel and unusual punishment? What might not have been considered an abridgement or an infriengement, excessive, or cruel, or unusual in 1789 might well be so considered today.

[andyfox]

"Judicial exegesis is unavoidable with reference to an organic act like our Constitution, drawn, in many particulars, with purposed vagueness, so as to leave room for the unfolding future."

The Consitution says "no law" shall be passed against the freedom of the press. However, copyright laws abridge that freedom; so do laws against libels, obscenity, and pornography. So do laws that punish direct and successful verbal incitements to crime.

The 4th amendment prohibts "unreasonable" searches and seizures and provides that no warrants shall issue "but on probable cause." "Unreasonable" and "probable" rank pretty high on a list of indefinite terms, no? What would an "infamous" crime, referred to in the 5th amendment be? Getting a hum-job in the oval office?

Strict construction and original intent are inventions of politicians.
-Justice Felix Frankfurter

[andyfox]

Only the first paragraph in quotation marks is courtesy of Justice Frankfurter. The rest is courtesy of yours truly.

[brad]

a) frankfurter fdr man or at least post fdr. const trashed by then.

b) interestingly enough, warrants are no longer necessary or can be obtained after the fact (in our new anti terror fomerly anti drug police state soon to be fully implemmented) , so 'probably cause ' is really a moot point.

[MMMMMM]

This is very essential and instructive.

You are now invoking specific cases and asking how the Amendment applies to them. That's fine, but what you are doing is also skirting the initial question.

Before we can attempt to see the proper course of action in the special cases, we ought to first discern the essential meaning in the general case. You asked me what the phrase meant, and I explained. It really is quite clear what the phrase means. The only problem is that certain special cases may be difficult; that it may be difficult to see how to properly apply the phrase in those cases. That doesn't mean the original phrase or its meaning was unclear, though. The special cases are also of course more inherently complicated. Some may have obvious solutions while others may not. But again, that is not because the general essential principle was unclear; it wasn't. It is because special cases can be complex and difficult.

So the Amendment (or at least that phrase) isn't vague; it's just that many special cases related to it tend to present difficult problems.

That may seem like a trivial distinction, but it isn't, for several reasons. One reason it isn't a trivial disctinction is because when you erroneously attribute the difficulty of those special cases to being due to vagueness in the original phrase (or 'axiom'), you muddy the entire picture.

Some phrases are unclear, but those that are clear are so regardless of whether the special cases are easy or difficult.

I'm not talking about some vague "intent" here; just about trying to keep a clear picture of what is clear and what is vague.

The meaning of that phrase is clear, although the application of that phrase may be quite difficult in some cases. Let's not confuse meaning and application.

[Zeno]

The ambiguity exists and it does so for good reason, but the ambiguity is used by various people to usually further their own political or social agendas. This is certainly nothing new and has been going on since the constitution was ratified. The 55 men that put the constitution together harangue each other in committees to pound out a document that they thought would be workable. Nothing more. There is nothing sacred or holy about the text or the “original intent”. It is a document that helped form our nation, and it has flaws and greatness just as the people that wrote and ratified it had flaws and greatness.


Read Article V of the Constitution. I suggest that we “call a convention for proposing amendments’. The constitution was written to be self-correcting; if the people care enough about the document and think that a large change is needed. If a new constitutional convention is called, will the original intent of the people selected to write new portions be construed as some kind of holy oracle? I think not.

I think Andy is correct in his arguments in almost every particular. Of course, I think the same way so I am bias in this respect.

-Zeno

[MMMMMM]

Well I agree ambiguity exists in some parts, but not everywhere. For example the phrase I quoted is clear even if hard to apply at times.

"nor deny to any person within its jurisdiction the equal protection of the laws."

I'm not even talking about "original intent" here; it's just a crystal clear phrase. If applying it is hard at times that doesn't mean the phrase is unclear; just that some special cases are difficult or must be further defined. If the phrase doesn't go so far as to explicitly enumerate every likely or conceivable application, that doesn't mean it's unclear, just that some of the outer edges are left undefined. andy seems to think that makes ithe whole phrase unclear. I think that just makes it terse and leaves it up to succeeding generations to figure out how to apply the general to the special.

There's just nothing whatsoever that is inherently unclear in the phrase, as far as it goes. The fact that there are things it doesn't say, doesn't make what it does say unclear.

[John Cole]

brad,

So I take it you'd find the U.S. v. one 1978 Cadillac El Dorado a somewhat ludicrous case?

[andyfox]

A phrase only has meaning insofar as its application is concerned. If the application needs adjudication, it is because there is a lack of clarity and/or specificity in the language.

Not only are ambiguity and vagueness present in many parts of the Constitution, the clarity and preciseness of other parts makes it clear that such ambiguity and vagueness are deliberately present.

[MMMMMM]

"A phrase only has meaning insofar as its application is concerned. If the application needs adjudication, it is because there is a lack of clarity and/or specificity in the language."

Yes, andy, but there is a HUGE difference between inherently unclear and mere lack of comprehensive specificity. You have been erroneously confusing the two in calling that phrase unclear.

Also, if your nephew knows Multiplication and basic Division very well, but has trouble with Long Division or Algebra, it isn't because the rules he knows for basic Division are inherently unclear.