Members banned from this thread: Humorme
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"If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.” — George Washington, Farewell Address, 1796
You said, "the Court's positions have shifted back and forth across time..." It's not their job to keep changing the precedent.
The Founders is a misleading statement when used to encompass all the founding era men. There are three catagories: framers, ratifiers, and founders. Example: Jefferson was a founder. Madison was a framer and a ratifier. Jefferson and Madison were both founders.
The hermeneutics of textualism is the interpretation of the text and the intent of the text without interpreting beyond the intent of the text. Textualism falls under the umbrella of Communicative Theory, Normative Theory, and Methodological Theory of interpretation. There is very little discernible difference between textualists, classical intentionalists, statutory originalists. They believe the meaning is static. Example is the Ninth Amendment. The amendment does not protect rights. It is regarding limiting the interpretation of Article I powers. Using textualism, the Ninth and Tenth Amendments are rules of construction based on the language and intent of the Constitution. This follows the legal English doctrine of potestas stricte interpretatur: strict interpretation and in dubiis, non praesumitur pro potentia: interpret against an expansion of government power.
Unalienable and inalienable rights are the same thing. Inalienable was used in the Declaration of Independence. It was printed with unalienable. When a right is given up, or taken by the government, it becomes alienable.
The Second Amendment has a prefatory clause and an operative clause. Removing the prefatory clause has no impact regarding the meaning or intent.
The First Amendment's religion clauses were for the protection of the Protestant religion. Atheists had no standing under these clauses. Article VI's no religious tests was to protect the Protestant religion as well. Its intent was to counter the Test Act of 1763, The concern was that a test could prevent certain sects of the Protestant religion from participating in the government. It is a flaw to view these events through the lens of the fallacy of nunc pro tunc. These Protestant sects were terrified another sect getting special treatment or prominence over another sect. The Church of England's antics gave then this fear.
One example is Oliver Ellsworth argument during the debates:
If oaths were in favour of either congregationalists, presbyterians, episcopalions, baptists, or quakers, it would incapacitate more than three-fourths of the American citizens for any publick office; and thus degrade them from the rank of freemen.
Last edited by Tennyson; 25th February 2017 at 01:30 PM.
Last edited by Humorme; 25th February 2017 at 03:47 AM.
Unalienable and unalienable have the same meaning. "In" is a negative prefix derived from Latin and French, and "un" is a negative prefix derived from Anglican/English, thus the rights in the Bill of Rights are negative rights.
Jefferson's original draft of the Declaration of Independence:
We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from....
Inalienable was changed to unalienable by a copyist. Rights are either negative (unalienable or inalienable) or positive (alienable)