"Ed Huntress" wrote:

Most people believe in a Constitution that exists only between their ears.

And some people think it is living, subject to change of interpretation instead of just
amending it.

Wes
--
"Additionally as a security officer, I carry a gun to protect
government officials but my life isn't worth protecting at home
in their eyes." Dick Anthony Heller

"Wes" wrote in message
...
"Ed Huntress" wrote:

Most people believe in a Constitution that exists only between their ears.

And some people think it is living, subject to change of interpretation
instead of just
amending it.

Wes

That's not what the phrase "living constitution" means, Wes. In fact it has
a long history, and the original decision in which the Constitution was
considered to be "living" was a 1920 case in which the Court decided that
the federal government has the authority to make treaties regulating the
killing of waterfowl. g Some states wanted to kill them all off, before
they crossed the state lines. The "living constitution," as described by
Justice Oliver Wendel Holmes, is one that adheres to the intent and the
spirit of the Founders while interpreting the Constitution itself to adjust
to changing times. In that case the issue was the ambiguous meaning of the
10th Amendment.

That isn't quite what the rabid "originalists" would have you believe.
Furthermore, one of the fiercest conservatives and originalists, and once
considered to be one of the top two or three Constitutional theorists in the
US (Robert Bork), said, for example, that the idea that the 2nd Amendment
described an individual right was "absurd." He also said, in effect, that
the 10th Amendment is a meaningless redundancy...but that the redundancy had
little to do with limitations upon the federal government. Surprise,
surprise.

Originalism isn't what it's cracked up to be, originalists have different
ideas about what "intent" was and what the relative standing is of the
authoritative sources -- the debates in the First Congress, in the case of
Bork and the 2nd -- and it's clear that the Founders themselves had widely
varying ideas about how permanent the Constitution should be. Madison wanted
it to be permanent and hoped for few amendments; Jefferson said we should
scrap it every 19 years (his idea of a "generation") and re-write it from
scratch.

Most cases in which originalism is argued are not about the words of the
Constitution, in any case. They're about someone's idea of what the Founders
*must* have meant; not because they're good students of the Constitution or
its history, but because they've had their heads filled with crap from
various malcontents who, themselves, don't know much about it, either. If
you really want to discuss this subject some time we should drag out some of
the specific cases in which the subject is argued, and see what you think
when you lay out all of the legal issues in an individual case. As I said,
it's not what most people think it is.

--
Ed Huntress

"Ed Huntress" wrote:

That isn't quite what the rabid "originalists" would have you believe.
Furthermore, one of the fiercest conservatives and originalists, and once
considered to be one of the top two or three Constitutional theorists in the
US (Robert Bork), said, for example, that the idea that the 2nd Amendment
described an individual right was "absurd." He also said, in effect, that
the 10th Amendment is a meaningless redundancy...but that the redundancy had
little to do with limitations upon the federal government. Surprise,
surprise.

Well thank you for pointing out that flaw in his thinking. 2nd Amendment, I didn't bother
to look up the 10th.

Btw, welcome back from your trip.

Wes

"Wes" wrote in message
news
"Ed Huntress" wrote:

That isn't quite what the rabid "originalists" would have you believe.
Furthermore, one of the fiercest conservatives and originalists, and once
considered to be one of the top two or three Constitutional theorists in
the
US (Robert Bork), said, for example, that the idea that the 2nd Amendment
described an individual right was "absurd." He also said, in effect, that
the 10th Amendment is a meaningless redundancy...but that the redundancy
had
little to do with limitations upon the federal government. Surprise,
surprise.

Well thank you for pointing out that flaw in his thinking. 2nd Amendment,
I didn't bother
to look up the 10th.

It isn't a flaw in his thinking. It's strict-constructionist originalism.
It's an example of the flaw in strict constructionism, and, by association,
in originalism. It's based on the originalist myth; the more you dig into
it, the more you realize that "originalism" is a bunch of bunk.

As for the 10th, have fun. That one will make you crazy.


Btw, welcome back from your trip.

Wes

Thanks. It was nice, but the traffic around the Solheim Cup golf tourney was
a bit of a hassle.

--
Ed Huntress

"Ed Huntress" wrote:

Well thank you for pointing out that flaw in his thinking. 2nd Amendment,
I didn't bother
to look up the 10th.

It isn't a flaw in his thinking. It's strict-constructionist originalism.
It's an example of the flaw in strict constructionism, and, by association,
in originalism. It's based on the originalist myth; the more you dig into
it, the more you realize that "originalism" is a bunch of bunk.

So are you a living Constitution type aka revisionist as I see it?

As for the 10th, have fun. That one will make you crazy.

By that time if our legislators thought they needed to restate limitations on the
government, I'm sure things had already gone crazy.

As you have likely noticed, many SCOTUS decisions are 5-4, there is a basic difference in
how we process information. At the level of SCOTUS where stare decisis is a tradition
along where honest jurists that evaluate the argument though their frame of reference can
at times make strange bedfellows.

Most of us, don't have to deal with that, we just see things differently depending on how
we lean.

A while back I was listening to a podcast, where Associate Justice Scalia and Nan Aron
were talking about cases were the he agreed with the ACLU. I wish I could locate it in my
files, it was very interesting where legal minds go.

I worry about how words are no longer meaning what I thought they meant. Reform = renege,
fair = income redistribution, free means separate s&h undisclosed, navigable waterway =
swamp, ect.


Wes