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> The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether t

> The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment. This seems to be relevant for the rest of your thing about how bad laws were made... > It's hard to imagine that any originalist text or intent would condone You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable. > The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead. > There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.

bmelton 13y ago
Apologies for the errors. I was (unwisely) posting under the influence at the time. You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction. As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend. The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark. In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification. I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.
- saraid216 13y ago
  ETA: I feel like this comment was sort of combative and harsh. I'm not really sure how to ameliorate that, though, so I'm just going to prepend an apology and say thank you for being more polite than me beforehand. :P > If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made. > the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent. This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.) http://www.constitution.org/cons/prin_cons.htm http://www.constitution.org/cons/prin_cons.htm (Especially #17)
  - bmelton 13y ago
    No worries on tone. I do my level best to always assume good faith, and temper that with the knowledge that smart, reasonable people often disagree very loudly. ;-) As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation. Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported. In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.

bmelton 13y ago

Apologies for the errors. I was (unwisely) posting under the influence at the time. You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction. As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend. The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark. In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification. I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.

saraid216 13y ago
ETA: I feel like this comment was sort of combative and harsh. I'm not really sure how to ameliorate that, though, so I'm just going to prepend an apology and say thank you for being more polite than me beforehand. :P > If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made. > the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent. This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.) http://www.constitution.org/cons/prin_cons.htm http://www.constitution.org/cons/prin_cons.htm (Especially #17)
- bmelton 13y ago
  No worries on tone. I do my level best to always assume good faith, and temper that with the knowledge that smart, reasonable people often disagree very loudly. ;-) As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation. Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported. In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.