Is the swingman retiring?

[GMDino]

Again, I'm just dicussing to discuss...but I found this:

https://en.wikipedia.org/wiki/Originalism

A better way to say it is that originalists say the constitution must be upheld the way it is written.  Not what the words could mean or what they would mean at any other given time OTHER than when they were written.

Quote:Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:

Quote:The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.[21]

Which, to me, is silly.

Times changes...society changes.

Certain terms hold their meaning.  Certain thoughts do not.

And certainly the SC (including Scalia) has had more than few decisions that went against decades of consistent decisions.  That sound like interpretation...not originalism.

[*michaelsean*]

(03-12-2018, 11:17 AM)GMDino Wrote: That doesn't sound logical.

Why would someone be an "originalist" and then agree with changes?  That doesn't sound like something people who claim to like the "originalists" would like.

They seem to want the Constitution applied as "originally" written...not as changes have been made.

Nor do they like new "interpretations" even though all we have is interpretations.  So if a new interpretation is that blacks/slaves no longer count as 3/5 that would not be original.  Nor would adding prohibition.  Then getting rid of prohibition.

Original is original: The way the founding fathers "meant" it to be.

And they meant it to be amended.  So no originalist should argue with any amendment. They can think the amendment was wrong to pass. I guess they could argue on what an amendment means in some cases if there is some ambiguity, but no originalist is arguing that the VP should be the guy who received the second most votes.  Or that the VP is next in line should the president die.  Or that senators are elected by the state legislatures.  (I think that's how it was.)

[*michaelsean*]

(03-12-2018, 11:24 AM)GMDino Wrote: Again, I'm just dicussing to discuss...but I found this:

https://en.wikipedia.org/wiki/Originalism

A better way to say it is that originalists say the constitution must be upheld the way it is written.  Not what the words could mean or what they would mean at any other given time OTHER than when they were written.



Which, to me, is silly.

Times changes...society changes.

Certain terms hold their meaning.  Certain thoughts do not.

And certainly the SC (including Scalia) has had more than few decisions that went against decades of consistent decisions.  That sound like interpretation...not originalism.

Well if you went against decades of decisions because you thought they weren't based on the constitution, then that would still be originalism.  We certainly have to interpret the constitution to modern times, but it should still be based on the constitution.  If you just say "Well the constitution was written a long time ago so it's worthless" then you better write a new one (matt) or you have no basis in law for anything.  Including the parts you like.

[*michaelsean*]

(03-12-2018, 11:16 AM)Au165 Wrote: Wait.....What? This statement contradicts itself at multiple levels.

No it doesn't.  If amendments are original intent, then they can't go against original intent.  It's impossible. Original intent says here is what we have come up with, but you can change any of it at any time through the amendment process.

And can you list the levels? I hear that phrase a lot but can never come up with all these levels.

[GMDino]

(03-12-2018, 11:31 AM)michaelsean Wrote: Well if you went against decades of decisions because you thought they weren't based on the constitution, then that would still be originalism.  We certainly have to interpret the constitution to modern times, but it should still be based on the constitution.  If you just say "Well the constitution was written a long time ago so it's worthless" then you better write a new one (matt) or you have no basis in law for anything.  Including the parts you like.

Which gets into originalist vs intentionalist I guess.

[*michaelsean*]

(03-12-2018, 11:36 AM)GMDino Wrote: Which gets into originalist vs intentionalist I guess.

I mean for a simple one, we can look at the air force.  Obviously there was no air force at the time so we look to what they say about a standing army.  That seems reasonable to me, and most I would expect.  

Edit: Or as bad as our gun argument is, most people agree you shouldn't be allowed to own a howitzer. So I imagine that would be intent as well. Which seems to be what Scalia was saying.

[GMDino]

(03-12-2018, 11:39 AM)michaelsean Wrote: I mean for a simple one, we can look at the air force.  Obviously there was no air force at the time so we look to what they say about a standing army.  That seems reasonable to me, and most I would expect.  

Edit:  Or as bad as our gun argument is, most people agree you shouldn't be allowed to own a howitzer.  So I imagine that would be intent as well.  Which seems to be what Scalia was saying.

The Air Force is a great example.

As to the 2A I don't know.  Plenty of my friends seem to think that like this (which was posted by an ex-marine over the weekend)


Now, we had a discussion about training and everything too...but there is a movement that believes this was the original intent.  And that the times changing to where the US did not need to raise an army from citizens (or a militia) has nothing to do with that original intent.

[BmorePat87]

(03-12-2018, 10:37 AM)michaelsean Wrote: The wording is still in there due to the unique way the constitution is amended, but it's no longer in effect.  

I'm not sure what you mean in your second sentence.  Original intent includes any amendments.

The Electoral College as it functions today does not model the original intent of it. States have slowly changed the process outside of the Amendment process. It used to be a system where you voted just for electors, not candidates or tickets. I wouldn't vote for "John Adams", I voted for "Isaac Philip Freely" who was a known Federalist in my area because I trusted him to pick the right guy and not some Democratic Republican scoundrel. 

But even by our 3rd election, there were at least 5 different ways electors were appointed by the state. Some states stuck to this original system, some picked the electors via their legislature, some had local jurisdictions picked them. 

Whether or not we agree with not using a popular vote, we can all at least agree that states moving to a nearly identical process in which electors are more ceremonial and our votes matter in our state is better than the original way it was intended to function. 


There's also arguments over whose original intent we use. The FF's disagreed a lot.

[*michaelsean*]

(03-12-2018, 11:52 AM)BmorePat87 Wrote: The Electoral College as it functions today does not model the original intent of it. States have slowly changed the process outside of the Amendment process. It used to be a system where you voted just for electors, not candidates or tickets. I wouldn't vote for "John Adams", I voted for "Isaac Philip Freely" who was a known Federalist in my area because I trusted him to pick the right guy and not some Democratic Republican scoundrel. 

But even by our 3rd election, there were at least 5 different ways electors were appointed by the state. Some states stuck to this original system, some picked the electors via their legislature, some had local jurisdictions picked them. 

Whether or not we agree with not using a popular vote, we can all at least agree that states moving to a nearly identical process in which electors are more ceremonial and our votes matter in our state is better than the original way it was intended to function. 


There's also arguments over whose original intent we use. The FF's disagreed a lot.

Oh OK.  Didn't realize that.

[*michaelsean*]

(03-12-2018, 11:51 AM)GMDino Wrote: The Air Force is a great example.

As to the 2A I don't know.  Plenty of my friends seem to think that like this (which was posted by an ex-marine over the weekend)


Now, we had a discussion about training and everything too...but there is a movement that believes this was the original intent.  And that the times changing to where the US did not need to raise an army from citizens (or a militia) has nothing to do with that original intent.

I believe there are those that think that, but I have to believe it's a small minority even among the pro-gun people. I don't know it for a fact though.

[GMDino]

(03-12-2018, 11:59 AM)michaelsean Wrote: I believe there are those that think that, but I have to believe it's a small minority even among the pro-gun people.  I don't know it for a fact though.

But if it's a majority of SC Justices that believe in it that would be all it takes...right?

[*michaelsean*]

(03-12-2018, 12:03 PM)GMDino Wrote: But if it's a majority of SC Justices that believe in it that would be all it takes...right?

If that's how they interpret it.  Then you pass an amendment saying no.

[Au165]

(03-12-2018, 11:33 AM)michaelsean Wrote: No it doesn't.  If amendments are original intent, then they can't go against original intent.  It's impossible.  Original intent says here is what we have come up with, but you can change any of it at any time through the amendment process.  

And can you list the levels?  I hear that phrase a lot but can never come up with all these levels.

How is an amendment original intent if it amended the original intent to something different (see amendments revoking other amendments after the fact)? That is the first level, the semantics side of it. The next level is simply the logical test of contradiction. By this belief we could amend the constitution to exactly the opposite of everything originally written and you would say that this was the original intent. If we created an amendment that ended amendments would that still be original intent? You are basically saying the original intent was strictly structure (making amendments) over content (what was in the original amendments), I have a hard time fathoming this was the intent of anyone. 

[GMDino]

(03-12-2018, 12:06 PM)michaelsean Wrote: If that's how they interpret it.  Then you pass an amendment saying no.

Then what is the point of an originalist if they just agree with the current version as original intent?

[*michaelsean*]

(03-12-2018, 12:09 PM)Au165 Wrote: How is an amendment original intent if it amended the original intent to something different (see amendments revoking other amendments after the fact)? That is the first level, the semantics side of it. The next level is simply the logical test of contradiction. By this belief we could amend the constitution to exactly the opposite of everything originally written and you would say that this was the original intent. If we created an amendment that ended amendments would that still be original intent? You are basically saying the original intent was strictly structure (making amendments) over content (what was in the original amendments), I have a hard time fathoming this was the intent of anyone. 

It was absolutely the intent or else it wouldn't be in there.  They didn't make it an easy process, but we can change anything we want through the amendment process, and it would still be original intent.  Their original intent was to lay out a framework for a new country, and that it be adjustable when the need arises.  You can't argue that amending the constitution wasn't original intent.  Therefore you can't be going against original intent by using them.

[*michaelsean*]

(03-12-2018, 12:09 PM)GMDino Wrote: Then what is the point of an originalist if they just agree with the current version as original intent?

They may not agree with that.  That's just how it works today.  That's what the whole Marbury vs Madison comes in.  He won the battle and lost the war.

[Au165]

(03-12-2018, 12:17 PM)michaelsean Wrote: It was absolutely the intent or else it wouldn't be in there.  They didn't make it an easy process, but we can change anything we want through the amendment process, and it would still be original intent.  Their original intent was to lay out a framework for a new country, and that it be adjustable when the need arises.  You can't argue that amending the constitution wasn't original intent.  Therefore you can't be going against original intent by using them.

So if we amend it to end amendments we are doing as they designed right? We are using their process to adjust as a perceived need arouse. I think you have stretched the term original intent a little far here.

[BmorePat87]

(03-12-2018, 12:17 PM)michaelsean Wrote: It was absolutely the intent or else it wouldn't be in there.  They didn't make it an easy process, but we can change anything we want through the amendment process, and it would still be original intent.  Their original intent was to lay out a framework for a new country, and that it be adjustable when the need arises.  You can't argue that amending the constitution wasn't original intent.  Therefore you can't be going against original intent by using them.

So the Constitution was intended to be a fluid document that could change beyond the original intent. 

[*michaelsean*]

(03-12-2018, 12:23 PM)BmorePat87 Wrote: So the Constitution was intended to be a fluid document that could change beyond the original intent. 

Fluid in that you can amend it.  Not just decide it doesn't fit somewhere.

[Au165]

(03-12-2018, 12:23 PM)BmorePat87 Wrote: So the Constitution was intended to be a fluid document that could change beyond the original intent. 

This is like some weird inception thing. An intent, inside an intent, inside an intent.