Is the swingman retiring?

[BmorePat87]

(03-12-2018, 12:25 PM)michaelsean Wrote: Not just decide it doesn't fit somewhere.

Just so I'm clear on your intent (lol sorry) here, what do you mean by this?

[*michaelsean*]

(03-12-2018, 12:21 PM)Au165 Wrote: 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.

You think including amendments as part of original intent is stretching it?  I'm speaking of a more liberal way of viewing the constitution than you at this point.  I'm saying original intent is that we change the constitution as we deem necessary through the amendment process.  How are you arguing against that?

[*michaelsean*]

(03-12-2018, 12:29 PM)BmorePat87 Wrote: Just so I'm clear on your intent (lol sorry) here, what do you mean by this?

That to alter a part of the constitution requires an amendment.  And yes I believe we can adapt the constitution to fit the current day, but usually when people call it fluid they seem to mean you can decide it says anything you want it to say.  I'm somewhere in between, and I don't think I could label myself as any one way.  

[Au165]

(03-12-2018, 12:29 PM)michaelsean Wrote: You think including amendments as part of original intent is stretching it?  I'm speaking of a more liberal way of viewing the constitution than you at this point.  I'm saying original intent is that we change the constitution as we deem necessary through the amendment process.  How are you arguing against that?

No I am saying that classifying any amendment beyond what was written originally to be included as original intent is stretching it. By the very use of the word original it references what was there first not what was subsequently changed to what was there first. There can be the intent of whoever wrote later amendments but normally original intent, in my experience, is left to those original amendments because it is an exercise in history and linguistics to what the words on the paper actually meant.

Side note: This is now my third time asking you this question, If we amended the constitution to end amendments would that be original intent?

[BmorePat87]

(03-12-2018, 12:34 PM)michaelsean Wrote: That to alter a part of the constitution requires an amendment.  And yes I believe we can adapt the constitution to fit the current day, but usually when people call it fluid they seem to mean you can decide it says anything you want it to say.  I'm somewhere in between, and I don't think I could label myself as any one way.  

There's no how to guide with the Constitution. Immediately after it was written, there were differing opinions on how to view it by various Founding Fathers. Our Constitution is relatively short and broad, it opens itself up to being interpreted and reinterpreted because it really doesn't give a lot or specifics. 

So the problem with saying "original intent" is we have to always ask "Whose original intent?".  

[*michaelsean*]

(03-12-2018, 12:38 PM)Au165 Wrote: No I am saying that classifying any amendment beyond what was written originally to be included as original intent is stretching it. By the very use of the word original it references what was there first not what was subsequently changed to what was there first. There can be the intent of whoever wrote later amendments but normally original intent, in my experience, is left to those original amendments because it is an exercise in history and linguistics to what the words on the paper actually meant.

Side note: This is now my third time asking you this question, If we amended the constitution to end amendments would that be original intent?

Yes.

Why do you ignore the amendment process as something they wrote originally? Do you think original intent people are against the bill of rights? Do you think amending the constitution goes against their intent?

[Au165]

(03-12-2018, 12:59 PM)michaelsean Wrote: Yes.

Why do you ignore the amendment process as something they wrote originally?  Do you think original intent people are against the bill of rights?

So they originally intended for people to be able to end the process of amending the document we live by that was originally intended (by your own admission) to be a fluid evolving document?

See how this ends up going round and round?

[*michaelsean*]

(03-12-2018, 01:03 PM)Au165 Wrote: So they originally intended for people to be able to end the process of amending the document we live by that was originally intended (by your own admission) to be a fluid evolving document?

See how this ends up going round and round?

No they intended for us to change the document as we see fit albeit through an arduous process so that ridiculous examples like yours don't get through.  

I'll add that anyone who doesn't believe in the amendments because they weren't in the very original writing (despite amending being in the original writing) is a moron.

[*michaelsean*]

(03-12-2018, 12:46 PM)BmorePat87 Wrote: There's no how to guide with the Constitution. Immediately after it was written, there were differing opinions on how to view it by various Founding Fathers. Our Constitution is relatively short and broad, it opens itself up to being interpreted and reinterpreted because it really doesn't give a lot or specifics. 

So the problem with saying "original intent" is we have to always ask "Whose original intent?".  

I just try to use a common sense deduction.  The second amendment.  One group says we should be able to own drones armed with hellfire missiles, and the other side says we should be limited to the weapons that were available when it was written.  

The problem is attempting to be consistent.  I have no trouble assuming an Air force fits within the context of the Constitution.  I do not believe abortion does.  How can i say one without the other?  To me it seems reasonable.  

[*michaelsean*]

Maybe this is an easier way to say say it. Original intent is the attempt to derive what the writers meant. With amendments, that is not necessary. Their intent is now irrelevant as it has been changed through the process they laid out. Therefore if you are an original intent person all amendments should be legitimate.

[GMDino]

(03-12-2018, 12:38 PM)Au165 Wrote: No I am saying that classifying any amendment beyond what was written originally to be included as original intent is stretching it. By the very use of the word original it references what was there first not what was subsequently changed to what was there first. There can be the intent of whoever wrote later amendments but normally original intent, in my experience, is left to those original amendments because it is an exercise in history and linguistics to what the words on the paper actually meant.

Side note: This is now my third time asking you this question, If we amended the constitution to end amendments would that be original intent?

Following the logic so far: Yes.

[*michaelsean*]

(03-12-2018, 02:18 PM)GMDino Wrote: Following the logic so far: Yes.

And why did they make amending the Constitution a difficult process?

[Belsnickel]

Lots of discussion here about interpretations of the Constitution. Most of you know my position (I was even called out by name, lol). I just want to make it clear that whether you are a textualist, an originalist, an aspirationalist, a structuralist, whatever, it is an interpretation and it is subjective. Some people like to pretend that a moderate court is best, some like a split court (I among them). Some want to politicize it and make it lean one way or the other. Whatever your view, whatever the views of a Justice, it's all subjective. Personally, I like a split court with a wide range of views. It leads to some of the most intellectual discussions about our laws.

I also think the use of the term "judicial activism" is utter bullshit. So much legislation has been passed, and even amendments have been ratified, that have not taken effect until the courts rule that the executive must actually uphold the law. The term is only used by people ignorant of and/or unhappy with the court. People that cry judicial activism over Windsor or Roe keep their traps shut about Heller or even Bush v. Gore, and vice versa. I don't take anyone seriously in any discussion about SCOTUS when they use the term with any sincerity based on what has happened to this date in our courts.

That last bit was just me ranting because I have been dealing with morons all morning.

[treee]

(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.

The whole point of the judicial branch is to interpret the law. And interpretation requires contextualization. And the context of law changes a lot over the course of a few centuries. If you're still interpreting the constitution from the perspective of someone in the 1700s, then you're not doing your job. The whole point is to be able to perceive the intention of the lawn as it was written and 'translate' it, so to speak, into something that is applicable to the current situation. To do otherwise would be making choices with insufficient information. Sure, it does require good faith to be done correctly, but that is why these judges are supposed to be so thoroughly vetted.

[Au165]

(03-12-2018, 01:13 PM)michaelsean Wrote: No they intended for us to change the document as we see fit albeit through an arduous process so that ridiculous examples like yours don't get through.  

I'll add that  anyone who doesn't believe in the amendments because they weren't in the very original writing (despite amending being in the original writing) is a moron.

It doesn't matter how ridiculous it is (not really that ridiculous in a party based power grab actually), based on your explanation it creates a paradox that positions your argument of original intent against itself.

That's not what is being said. You have taken this into the weeds, but let's talk more about the moron thing. Explain the paradox above using the logic you have used in establishing original intent.

[*michaelsean*]

(03-12-2018, 02:39 PM)Belsnickel Wrote: Lots of discussion here about interpretations of the Constitution. Most of you know my position (I was even called out by name, lol). I just want to make it clear that whether you are a textualist, an originalist, an aspirationalist, a structuralist, whatever, it is an interpretation and it is subjective. Some people like to pretend that a moderate court is best, some like a split court (I among them). Some want to politicize it and make it lean one way or the other. Whatever your view, whatever the views of a Justice, it's all subjective. Personally, I like a split court with a wide range of views. It leads to some of the most intellectual discussions about our laws.

I also think the use of the term "judicial activism" is utter bullshit. So much legislation has been passed, and even amendments have been ratified, that have not taken effect until the courts rule that the executive must actually uphold the law. The term is only used by people ignorant of and/or unhappy with the court. People that cry judicial activism over Windsor or Roe keep their traps shut about Heller or even Bush v. Gore, and vice versa. I don't take anyone seriously in any discussion about SCOTUS when they use the term with any sincerity based on what has happened to this date in our courts.

That last bit was just me ranting because I have been dealing with morons all morning.

I still take heart from learning that Scalia and Ginsberg were the best of friends.  If you are conservative, do you think Scalia would hang out with a wacko nut job?  If you are liberal do you think Ginsberg would hang out with an evil racist person who hates poor people or whatever was thought of Scalia?

[Belsnickel]

(03-12-2018, 02:46 PM)michaelsean Wrote: I still take heart from learning that Scalia and Ginsberg were the best of friends.  If you are conservative, do you think Scalia would hang out with a wacko nut job?  If you are liberal do you think Ginsberg would hang out with an evil racist person who hates poor people or whatever was thought of Scalia?

This is always the type of thing that makes me as idealist and optimistic as I am for change. We have one branch that, even if I don't agree with them, approach their jobs with the gravity that is needed and recognize that those that are "opponents" are just people, too.

[*michaelsean*]

(03-12-2018, 02:44 PM)Au165 Wrote: It doesn't matter how ridiculous it is (not really that ridiculous in a party based power grab actually), based on your explanation it creates a paradox that positions your argument of original intent against itself.

That's not what is being said. You have taken this into the weeds, but let's talk more about the moron thing. Explain the paradox above using the logic you have used in establishing original intent.

It's beyond ridiculous but anyway, they set up a framework, and being forward sighted people, they realized their framework would need to be altered from time to time, so they put in the amendment process.  Now do you think they put in the amendment process with the idea that nobody would ever change anything?  Of course not.  So their intent was that it would be changed.  So amendments are part of original intent.  But they didn't make it an easy path, and I refer you back to your example.  

So tell me, how can using what they intended, the way they intended, not be original intent?

[Au165]

(03-12-2018, 03:08 PM)michaelsean Wrote: It's beyond ridiculous but anyway, they set up a framework, and being forward sighted people, they realized their framework would need to be altered from time to time, so they put in the amendment process.  Now do you think they put in the amendment process with the idea that nobody would ever change anything?  Of course not.  So their intent was that it would be changed.  So amendments are part of original intent.  But they didn't make it an easy path, and I refer you back to your example.  

Okay, so now we are getting somewhere. As was said way back a long time ago, the process of creating amendments was in fact original intent in that is was to be a tool to allow it to evolve. The idea that every amendment ever created there in after follows the original intent of the constitution by virtue of being an amendment is not valid. That is why the paradox I keep mentioning matters. 

The "amendment to kill off amendments" in my example would follow the process they put in there intentionally making it original intent. Do you think they intended to provide an avenue to dissolve the whole basis of their fluid document? If so, then your contradicting your first statement that they intended for an amendment process to exist. If not then you are saying that this amendment would be counter intuitive to the amendment process itself making it outside the scope of their original intent. You're trying to take a very existential approach to original intent but when applied to the paradox (which is more litmus test than anything) I have laid out it requires you to abandon a stance and make assumptions to what they actually intended to happen. This is what real judges have to do when trying to apply original intent, and is kind of a long road back to where this whole thing started haha.

I'll go out on a limb and say the never originally intended to create an avenue to dissolve the ability to amend the constitution. With that said, I would hold that any future amendment to do so would be outside the original intent of the constitution and therefor would not be upheld. See this is what judges have to do when it comes to constitutional questions.

[*michaelsean*]

Their original intent was to have us change it however we decide. Even stupidly if we so wish. They put absolutely no limitations on what could be amended as long as it went through the process. So yes we can amend the constitution to ban amendments.




A court can interpret, but cannot overrule or throw out an amendment.

And trust me I’m not trying to be existential. I wouldn’t know how.