Has anybody read Antonin Scalia's latest book, "Reading Law"?

[desert dude]

What is living then, according to your statement, is the interpretation. How is that any different really? We all operate under the believe that our understanding of the document is all that really matters. If that is the case, then it makes no difference if the document is alive or dead, it is the meaning we take away that has any relvence. There are examples of the document that provide for our changing morals and ethics. "cruel and unusual punishment" seems worded to accomodate an evolving society - now is that prase dead? As we look at it I begin to lose the concept of dead vs alive.

"Among" does not mean "within". That is the difference. What CC allows congress to do is to say, for example, that New York is not allowed to enact a law that makes it illegal to import California wine into New York, and vice versa.

"Cruel and unusual" does seem to allow for evolving interpretations, although some textualists would argue this one with you. "Among" does not.

 

[desert dude]

But suppose that is exactly what they meant?

Then you ought to be able to prove that, just as the textualists were able to prove that it did not mean that.

 

[NoDrama]

Semantic and philosophical drift is a real problem for the authors of codices. Is the amendment process enough to adjust the document to stay in keeping with language's and society's changes? cn

Amendment? Government does all sorts of things that are unconstitutional and have no amendment to them. The constitution says the government may not take away your property without giving you fair value for it, yet people who have not even been accused of a crime have their property taken by authority all the time with no compensation at all. Constitution says only gold and silver can be money, no amendment to that, Constitution says only Congress can issue currency, yet they issue nothing, they gave the power to the Fed. Where is the amendment that allows this? Where is the amendment that says presidents can be judge and jury of anyone they please and have then bombed by drone? Certainly the constitution says everyone has the right to a fair trial of their peers, yet there is no amendment to this. I could go on and on and on, but you get the idea.

 

[canndo]

Then you ought to be able to prove that, just as the textualists were able to prove that it did not mean that.

Now you see where we have gotten. Need we "prove" the meaning of a document? SHould it not be self evident?

 

[NoDrama]

The first part of the amendment provided a reason, and it is precisely there that the drift of language is at its most visible. Back then "well-regulated" meant "able to hit the target". Trouble is, more modern scholars with agendas have been advancing the idea that the preamble of the amendment is a condition, one that restricts the right to "well-regulated" i. e. official militia. Imo it's best to leave out the "justification" bit, as it only provides a fulcrum for the crowbar crew. cn

exactly, back when the Connie was written, "regulate" meant to make normal. It did not mean to make rules concerning every aspect of it. I do not believe the founders were so naive to think that the Connie should be changed not by amendment but by the whim of newspeak. You can change everything in the Connie by just having new Supremes on the bench that will kowtow to the agenda. Once that is in place only one thing stands between all powerful government and pure tyranny; the concerned citizens. Silence the dissenters before you change everything and the change will be unnoticed by all but a few.

 

[NoDrama]

But suppose that is exactly what they meant?

Why would you suppose this? Read the federalist papers and all the correspondence between the founders at the time. They most certainly and without any doubt intended citizens to be armed to the teeth.

 

[desert dude]

Now you see where we have gotten. Need we "prove" the meaning of a document? SHould it not be self evident?

It is to a textualist. A living constitutionalist must first wet his finger to test the political breeze.

 

[canndo]

Why would you suppose this? Read the federalist papers and all the correspondence between the founders at the time. They most certainly and without any doubt intended citizens to be armed to the teeth.

Then... why wasn't it written that way?

 

[canndo]

It is to a textualist. A living constitutionalist must first wet his finger to test the political breeze.

No, the living constitutionalist must be aware of the meaning of words in the current context. That is the point, that as our society evolves (if that is the proper word), the meaning and intent of the constitution evolves with it. The founding fathers could not have understood the dilema of "secure in their paper and effects" in a world that had tiny boxes that stored large amounts of information and could be carried on one's person. It seems evident to me at least that one's effects extended to one's cell phone and the information contained within is as private in public as it is in one's home, yet when the Constitution is read in it's "dead" form, the cell phone is not referenced in any form. Only a liberal, live reading of the document would reveal what must have been meant by those founders.

Now, am I arguing for a dead reading or a live one? I really am losing concept here.

 

[cannabineer]

Then... why wasn't it written that way?

It was initially. It suffered from a curious 18th-century malady ... comma inflation.
The original text was "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."
With the spurious commas removed, i submit that the amendment's purpose is clear.

It's also worth remembering that the cult of the Cincinnati was strong at the time of the Constitution's drafting and ratification. The model citizen was the "gentleman farmer" who was presumed to be a frontline soldier in time of need ... a militia member. Like the longbowmen of older English history, that militia was only as effective as it was accurate with its weapons. The role and very meaning of militia has drifted, and so i propose that the expository clause is no longer relevant or useful.
But Canndo, if you are seriously proposing that the drafters were describing not an individual but a collective right, I would be startled, since that is not in keeping with the context of either the document or the times. Jmo. cn

http://www.guncite.com/second_amendment_commas.html

 

[desert dude]

No, the living constitutionalist must be aware of the meaning of words in the current context. That is the point, that as our society evolves (if that is the proper word), the meaning and intent of the constitution evolves with it. The founding fathers could not have understood the dilema of "secure in their paper and effects" in a world that had tiny boxes that stored large amounts of information and could be carried on one's person. It seems evident to me at least that one's effects extended to one's cell phone and the information contained within is as private in public as it is in one's home, yet when the Constitution is read in it's "dead" form, the cell phone is not referenced in any form. Only a liberal, live reading of the document would reveal what must have been meant by those founders.

Now, am I arguing for a dead reading or a live one? I really am losing concept here.

We are in complete disagreement. The law means what it says at the time of its writing, nothing more and nothing less. It does not evolve, its meaning does not change over time. We live in a Republic where our laws are determined by our representatives, it is up to them to change a law that needs changing. Theoretically, they are accountable to voters. If your representative displeases you then throw him out on his ear and elect somebody more in tune with your own thinking.

For a law to "evolve' means that it is changed by a judge to mean something that it did not originally mean. Sorry, but that is the job of legislators.

I am not seeing a dilemna here. "Effects" covers cell phones, email, computer, shoe box under your bed, etc.

 

[ginwilly]

Put me in the camp for strict interpretation. I don't believe the meaning or intent of the constitution is subject to change over time.

Check your history and find out why we even have a constitution and intent is clear. England didn't have one using mostly the Magna Carta as a baseline. Anytime parliament wanted to change something they just did. The colonies were pitching fits about this more than a century before our revolution. Even though there was no constitution, the colonists would call any change to tradition by parliament as unconstitutional. Parliament was a fickle animal back then. When we won our independence the forefathers wanted to make sure there wasn't a future "parliament" that changed laws based on societal whims. They set up a pretty amazing foundation of limited government and put it in writing to keep. They made an amendment process to allow for societal changes. Societal changes doesn't mean we interpret it different. It means we have to amend it.

The framers intent should be obvious if you know the history of the times. It took 12 years of SC stacking before a ruling like Wickard v Filburn could even be possible. If anyone thinks are founding fathers wrote the commerce/general welfare clauses so they could limit the amount of wheat a man grows on his own land for his own consumption they simply do not know the early history.

We went from "how can we limit the federal governments power to ensure individual rights" to the new SC picks saying there is no limiting factor to the commerce or general welfare clauses as to what our government can do. No limiting factors...

The only way you can possibly believe there is no limiting factors is because your political views feels it's the way it should be. I just don't see the logic once you read the documents and study the history of the time.

 

[Dr Kynes]

What is living then, according to your statement, is the interpretation. How is that any different really? We all operate under the believe that our understanding of the document is all that really matters. If that is the case, then it makes no difference if the document is alive or dead, it is the meaning we take away that has any relvence. There are examples of the document that provide for our changing morals and ethics. "cruel and unusual punishment" seems worded to accomodate an evolving society - now is that prase dead? As we look at it I begin to lose the concept of dead vs alive.

"cruel and unsual" was instituted to prevent torture, spectacle punishment, justice as theater, and a myriad other things which were intensely popular particularly in french and spanish colonial zones.

the 1770's were not the 1970's, many "modern" nations at the time were indulging in all manner of depravity and barbarism to keep their kludges in check. shit, just google Junipero Serra, the franciscan butcher who was running california like his own personal Auto Da Fe. France was nearly as mad with their fomenting revolution and reprisals from the aristocracy.

pretending that the prohibition on torture and spectacle is in some way related to the militia and it's related acts of congress is pure sophistry.

google the militia act of 1792 http://www.westernjournalism.com/blogging-tools/historical-documents/antebellum-america-1789-1860/militia-act-of-1792/ which holds a view counter to your own, and favouring the well established right to bear arms as well as the right to arm bears.

this act was modified by the Dick Act in 1903 and the Dick Act is the basis for the draft and the presumption of an "organized militia" which would ordinarily be precluded by constitutional prohibitions on a standing army. our constitution is intended to be immutable (save by amendment) but the claim that it is "living" allows for extra-constitutional revisions at the whim of whoever has the reins of power at the moment.

the converse claim of a "dead" constitution is a self defeating argument that surrenders the presumption of life by claiming death. The constitution is neither dead nor alive, it is an ideal, turning it into a badmiton birdie for semantic gamesmanship demeans the constitution and the competitors in that shabby game of mutual masturbation

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ...the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." ~Tench Coxe Pennsylvanian delegate to the continental congress

 

[UncleBuck]

according to scalia, if we can't be morally opposed to homosexuality, murder will be all the rage before we know it.

. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

he is a bigot, a douchebag, and a self righteous blowhard. no wonder desert dude identifies with him

 

[Dr Kynes]

according to scalia, if we can't be morally opposed to homosexuality, murder will be all the rage before we know it.

. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

he is a bigot, a douchebag, and a self righteous blowhard. no wonder desert dude identifies with him

shhh...Nobody tell bucky that he is looking into a mirror.

 

[UncleBuck]

if we can't have moral objections to multiculturalism, next thing ya know it will be compulsory for humans to fuck dogs!

 

[ChesusRice]

(CNN) – As the nation's top court prepares to tackle the contentious issue of same-sex marriage, one of its most conservative justices defended past writings linking bans on homosexual sodomy to bans on sex with animals and murder.
Speaking at Princeton Monday, Associate Justice Antonin Scalia said his previous comments, made in multiple Supreme Court dissents, were effective in making the argument that legislatures should be able to ban behavior deemed immoral.

When a questioner who identified as gay asked whether making such comparisons was necessary, Scalia said "I don't think it's necessary but I think it's effective."
"If we cannot have moral feelings against homosexuality, can we have it against murder, can we have it against these other things?" Scalia asked, according to an audio recording provided to CNN by someone who attended the event, which was meant to promote Scalia's new book, "Reading Law: The Interpretation of Legal Texts." The website of Princeton's department of communications said more than 700 people attended the session.

 

[desert dude]

according to scalia, if we can't be morally opposed to homosexuality, murder will be all the rage before we know it.

. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

he is a bigot, a douchebag, and a self righteous blowhard. no wonder desert dude identifies with him

You might want to include the whole quote but that would defeat your dishonest, as always, purpose.

Here, let me quote the rest:

"Scalia said his dissents were meant to be "a reduction to the absurd," not a comparison between homosexual acts and murder."

http://politicalticker.blogs.cnn.com/2012/12/11/scalia-defends-past-comments-some-see-as-anti-gay/

 

[UncleBuck]

You might want to include the whole quote but that would defeat your dishonest, as always, purpose.

i included the entire reductio ad absurdum, and it's quite absurd.

i don't know how a douchebag like that gets to sit on that court.

 

[Dr Kynes]

if we can't have moral objections to multiculturalism, next thing ya know it will be compulsory for humans to fuck dogs!

but i already am disallowed my opposition to forced multiculturalism by YOUR decree, and as i understand, your bestiality preferences are prohibited in oregon.