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Thread: Constitutional originalism

  1. #31
    Swamper chaos's Avatar
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    Quote Originally Posted by Rasselas View Post
    I disagree.
    Keep it simple and post a fact to back your disagreement. I'll start by asserting that we no longer have habeas corpus.

  2. #32
    vulgar? Rasselas's Avatar
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    Quote Originally Posted by chaos View Post
    Keep it simple and post a fact to back your disagreement. I'll start by asserting that we no longer have habeas corpus.
    Who is being held without charge?

  3. #33
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    Quote Originally Posted by libertariat720 View Post
    None of that really matters since self-defense, the right to defend your body from unwanted harm, is not handed down by the government.

    It's inalienable, a natural right.
    It would be unalienable Right. In law, an unalienable Right is above the jurisdiction of government. Inalienable rights, on the other hand, may be given up.
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  4. #34
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    Quote Originally Posted by Rasselas View Post
    But like a lot of legal documents, "literal" is not always an easy thing to nail down. If it were, we wouldn't need the Supreme Court at all. And the Court's positions have shifted back and forth across time.

    I don't see why we must continue to understand the world just as people in the 18th century did. THEY certainly would not expect us to, and said so.
    "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." Thomas Jefferson 12 June 1823

    "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.
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  5. #35
    A Character Tennyson's Avatar
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    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.
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  6. #36
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    Quote Originally Posted by Tennyson View Post
    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 one 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 have 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.
    You are wrong of course. The words unalienable and inalienable have been interpreted differently by the courts. The balance of your post is wrong, but if you read the OP, this isn't a gun control thread.


    http://www.gemworld.com/usa-unalienable.htm
    Last edited by Humorme; 25th February 2017 at 03:47 AM.

  7. #37
    Veteran Member DebateDrone's Avatar
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    Quote Originally Posted by libertariat720 View Post
    Read the federalist papers. It's all spelled out in there.

    Avalon Project - The Federalist Papers
    The Federalist papers have no weight in the law. Might as well read the Bible for your legal reasoning.
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  8. #38
    vulgar? Rasselas's Avatar
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    Quote Originally Posted by Tennyson View Post
    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 one 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 have 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.
    Your whole post sounds like a disquisition on a scriptural text.

  9. #39
    A Character Tennyson's Avatar
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    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)
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  10. #40
    A Character Tennyson's Avatar
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    Quote Originally Posted by Ian Jeffrey View Post
    An "originalist" follows what is typically referred to as "original intent," which is to say the founders' writings are consulted to see what they meant by one provision or another. A "literalist" or "textualist" is concerned only with the text, and does not care what anyone supposedly "meant." There are other schools of thought as well.

    Of course, it is rare if at all that anyone follows any one school of thought. And that is entirely appropriate. In some cases, the founders left no thoughts behind in writing as to what they meant by something, whether in general or as applied to a particular question; in others, the text is not particularly helpful.

    James Madison held back on publication of his notes on the convention, so that people would follow the document rather than what one or another person thought something "really" meant, which means it was original intent not to follow original intent.
    An interesting aside: Madison believed that the intent and meaning of the Constitution was created by the states' ratifying conventions.

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