Ninja
Senior Member
Folks, the last debate called Ron Paul a big idiot, and a liar. He is a fool!
And now that the Shrub Administration has filed a brief agreeing with the DC handgun ban, Ron Paul has my vote. I'm serious!
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Folks, the last debate called Ron Paul a big idiot, and a liar. He is a fool!
Jillian, I'm jumping in where I shouldn't but it's always seem to me that Brown was the more literal ruling, it was Plessy that was interpretive? The judges in Plessy added on their own, 'separate, but equal.' Brown reversed that wrong precedent?I might agree with that if he didn't actually go and speak to the white supremacists.
No. It was as intended when created. There were always going to be unanticipated questions. And in attempting to answer those questions, the Court would look to what the constitution was intended to do.. which is protect us from our government and protect the minority from tyranny of the majority... to protect our right to protest our government and our right to be free from unlawful search or seizure of our property... just to name a few.
Well, I agree, except to the extent set forth above. But I've never been for running around quoting our founders. Their world wasn't ours. They kept slaves; thought only landed gentry should vote and thought women were chattel....
If they wanted to limit what the Federal Government could do in the way that so many allege, the Constitution wouldn't provide that it could do whatever was "necessary and proper" to run the government. Those are pretty vague words. And in order to effectuate the purpose of the document, then it needs to be viewed broadly because "proper" means *right*... so I figure they meant government is supposed to do whatever it needs to do the right thing. That's a lot of leeway.
Ah... but as stated above. It can't be applied "literally" because the words leave a lot of latitude and were specifically intended to do so.
If the Constitution were strictly construed, Brown v the Board of Ed would not have overruled Plessy v Ferguson and segregation would still be lawful (hence white supremacists loving strict construction) because the actual words of the constitution are that all men (note it didn't say women, should we be excluded) should be treated "equally" under the law. Yet, Brown said that separate but equal was unlawful. That was a correct decision of course, but it turned on the fact that equality didn't only mean 'equally good'. There were far greater implications.
And if you look at the article I posted above, you will see that Justice Rhenquist actually said that Brown was wrongfully decided... there's something wrong with a justice saying that in this day and age and something wrong with a justice who thinks such a result would be at all in keeping with what the Constitution was intended to do.
During the 70's, the State of Connecticut outlawed the purchase of condoms. The Supreme Court said they couldn't do that because a married couple (the plaintiffs) were entitled to a right of privacy that stemmed from the penumbra emanating from the bill of rights. Lots of words, but what it came down to was... government is supposed to stay out of people's private decisions. Now, we all know there's no "right of privacy" listed in the bill of rights. Yet, if one looks at the bill of rights, one has to conclude that government isn't supposed to meddle in those things that we should be in control of ourselves.
That case was Griswold v Connecticut and it's one of the cases that gets reversed in the zeal of the right wing "strict constructionists" to reverse and undermine Roe v Wade, since it, too, was decided on the basis of right of privacy (at least in the first trimester).
So there ya go. My take on the subject.
Jillian, I'm jumping in where I shouldn't but it's always seem to me that Brown was the more literal ruling, it was Plessy that was interpretive? The judges in Plessy added on their own, 'separate, but equal.' Brown reversed that wrong precedent?
Again jumping in where I perhaps shouldn't, but it's always seemed to me that it's the Congress that should attempt to push the latitude of the elastic clause and the General Welfare clause. When brought to the SCOTUS, they are to rule whether or not the lines have been crossed via the Constitution. It's the inherent back and forth between branches that keeps power of any one somewhat in check. If both the Legislature and SCOTUS are effectively grasping at power, which is what happens in the interpretation, the federated part of our system breaks down. When either the separation of powers or the federation of powers becomes too far out of balance, it's the citizens that suffer from the breaking of the social contract.
Indeed we see many things differently, some things similarly. Separate but equal were not words from the constitution, somehow in Plessy they found their way into precedent.I don't agree that Brown was the more literal ruling. And, apparently, neither did Rhenquist. The law says "equal treatment" it doesn't say "the same". Either way, that's the thing about the Constitution, it does take understanding, and ignoring that to say "well, these are the words" is simply an abbrogation of everything that's come before.
I see things differently than you. I think the average person doesn't much care about the "social contract". The average person cares about whether they can go to a store and buy a condom, whether their kids are educated. whether they can marry a person of any color (or sex) they choose, keep government from wiretapping their phones, etc. The Court has to be the most "liberal" branch of government, really, because it's the last thing that stands between us and totalitarianism. And, I hate to say it, but sometimes you have to look at the motivations of the people who complain that the constitution isn't being "strictly construed" and see what it is they really want. That should answer your question about which protects individual rights more.
For the first, oh, 100+ years or so of this nation's history, the powers of the federal government were extremely limited, and this was well understood by the courts.
Now, we all know there's no "right of privacy" listed in the bill of rights.
jillian wrote:
It is written, in Article Four of the Bill of Rights: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"
I'd suggest before you get insulting that you actually read the history of the term "strict construction". The constitution was never intended to be read the way fundamentalist christians read their bible.
And it's truly interesting that the claims that the Constitution should be strictly construed started to arise at the same time as the religious right started to gain a foothold in government.
I don't really care about what Madison said about the Constitution. I care about what the Court's done since Marbury v Madison. So should you since that's the law and Madison's comments aren't.
Strict constructionism is a facile tool for government-haters and haters of civil rights and individual rights to use.
The judiciary is the conundrum as they read the same words and yet attach the meaning of thier choice to them. Thus the question: IF it is fine and dandy to interpret the Constitution, Why bother having it at all?
I dunno, I think we should have a "living" speed limit, maybe 50 mph or so. 35 mph is the standard, but those standards were drawn up in the 1950's. The guys that wrote those standards couldn't have imagined disc brakes and radial tires on every car.
The speed limit on the road to work for me is 35 mph. But...it's a 4-lane road, nice wide lanes, perfectly straight, and few intersections. I dunno, I think we should have a "living" speed limit, maybe 50 mph or so. 35 mph is the standard, but those standards were drawn up in the 1950's. The guys that wrote those standards couldn't have imagined disc brakes and radial tires on every car.