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It appears we have a split circuit on a constitutional issue

  • Not true. The Bill of Rights, when originally enacted, applied only to the federal government. After the 14th Amendment, the Supreme Court began incorporating the rights, bit by bit, against the states through the Due Process clause. Without this incorporation, which was obviously a big activist step by the Court, states would not be bound by the basic limits imposed by the Bill of Rights. A little bit of background:

  • no, actually you are not correct, the refusal to apply the Bill of Rights to actions by the individual states was...you guessed it, made by the US Supreme Court. if you read the very plain language of the amendments, it is clear that the drafters knew how to limit the scope of any amendment to only fed action, which they did in the First Amendment but not in the rest.

    the Supreme Court was wrong in 1833, just as it has been wrong on several occasions since.

    I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.

  • Well you can certainly have that opinion... but, as a strict constructionist, I'm sure you appreciate the issues of original intent and original meaning. Sure you can take the strict textualist approach and just interpret the language as written... but that leads to some irrational and dangerous results ("Congress shall make NO law." None? Not a single one?).

    The original intent and meaning of the Bill of Rights is clear. It applied to the federal government. James Madison, the principal drafter of the Bill of Rights, even recognized this. Sorry, but the guy who wrote the Bill of Rights and the legal scholars over several decades who were entrusted with interpreting them... they all disagree with you.

  • Madison wrote the first draft, that is all. and when I read "no law", I take it to mean exactly that. the founders left us with a means of amending any part of the Bill of Right we did not like, or that resulted in anything "absurd". yes, that means is less expedient than the ones we have taken, but the founders also had a reason for that.

    I think "original intent" is bullshit, and as a scrivener it sure would piss me off to have a judge apply "original intent" to a document that, on its face, is abundantly clear. the Bill of Rights says what it says, nothing less and nothing more.

    oh, and lastly, there is not one single Supreme Court justice who has been any more of a "legal scholar" than you or I - legal scholarship is a bullshit term that is nothing more than a proxy for reading comprehension.

    I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.

  • You strike me as a person who wants to simplify the issue so badly, that you're willing to make an even bigger mess of things. Yes, the text is clear. But in our common law tradition, courts always look beyond the ink to interpret the words (especially when the wording is poor, as is the case here). This is not a reading comprehension exercise, it is legal interpretation, which is more complicated than you make it. And yes, I'd trust the interpretation of esteemed jurists over yours or mine. No rational person thinks the text alone is sufficient to define the meaning.

    Assuming you are correct, Congress can't pass a law to prevent people from falsely representing themselves as FBI agents, a person cannot bring suit for misrepresentation against a car salesman who sold them a lemon, a person can practice human sacrifice if their religion requires it, etc. None of that was the intention or the meaning of the Bill of Rights.

  • first of all, simplifying things NEVER makes a bigger mess, but it does require significantly greater discipline in analysis and execution. for example, you are failing to recognize that there is nothing in our charter documents that permits an FBI, and in fact an FBI would never have been necessary but for the total ursurpation of governing power by the fed over the course of the last 100 years. you are also forgetting that, although the founders clearly came from an English common law perspective, the issue of judicial review and the development of common law by the courts was not established until Marbury - Marbury, of course, also being judge-made law. as for the absurdity of the First Amendment, you are also overlooking the fact that (a) the First Amendment as drafted would only apply to acts of Congress, and (b) criminal charges such as murder were reserved to the states.

    this is the problem with slippery slopes - the system of government set out in our charter documents was perverted so long ago and so thoroughly that nobody remembers where in the hell (or why) we ever started. as the saying goes, bad cases make bad law, and our history is rife with some really, really shitty cases.

    I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.

  • oh, and "legal interpretation" that is anything more than "reading comprehension" is the same as "legislating".

    I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.

  • Uhhhh. Ok. A lot of these points are ancillary, so I'll address them individually, even though you attacked the specifics of my examples rather than the basic point I'm trying to make: that you can't simply look at the text.

    -Replace "FBI" with ambassador, senator, representative, etc. Can the federal government prevent people from falsely making a statement that they hold such an office? It necessarily involves speech.

    -The Constitution, which was written after our common law principles had been in place for many many years, created the Supreme Court and empowered Congress to set up lower courts. So obviously, it stands to reason that the Constitution meant for common law principles to continue governing the country because the Constitution's text did not state otherwise. On the contrary, the Constitution expressly stated that common law continues to govern in the 7th Amendment.

    -Replace "murder" with treason, which the Constitution provides an explicit basis for federal criminal prosecution. If a person says "I committed this treason because it was a requirement of my religion," can the federal government prosecute him without violating his 1st Amendment rights?

    And just one more exercise for fun... the Constitution says no "unreasonable" searches and seizures. Please define what is unreasonable and who makes such a determination.

  • 2 points:

    1. first of all, the "common law" principles were not our own, they derived from our British heritage. you can hardly say that they predated the Constitution, since the Constitution represented the foundation of an entirely new sovereign nation.

    2. there is no point in arguing whether or not there are holes in the Constitution, since there clearly are. the question is who has responsibility for filling those holes - a court, a legislative body or an executive? if you take the view that the principle objective of the Constitution was to ensure that certain fundamental matters were protected against the whim and fancy of expedience and pragmatism (which happens to be my view), then the proper way to address holes in the charter documents is through legislative action by the elected representatives of the people (where permitted) or by amendment of the charter documents themselves through action of the states / people. addressing those holes through the courts does nothing more than grant the judiciary with power it was never intended to have, and leaves with little more than a politicized judiciary.

    fyi, I have not had the time or inclination to worry about it in 15 years, but I'm guessing you'll find that your friend Madison was a reasonably strong opponent of a national concept of "common law", and that the Constitution was in part intended to expressly codify issues that the founders did not want to leave exposed to the vagaries of the "common law".

    This post was edited by sloth 13 months ago

    I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.

  • Common law was brought over from England, continued throughout the Colonial era, and continued after the US achieved independence and set up its new government. Our constitution adopted these principles. It was not, as you say, the product of the tyrannical usurpation of the Supreme Court that enforced common law principles.

    "What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed." James Madison to George Washington,18 Oct. 1787, Papers 10:196--97

    This is the problem with your approach of "follow the black letter law and let the legislature fill in the gaps"..... it doesn't stand to reason. Immediately after the Constitution was ratified, the Founders began doing the exact opposite of what you say. If what you say was true, the Judiciary Act of 1789 was unconstitutional, even though it was written and passed largely by the people who wrote and passed the Constitution. So the "systematic deviation from the Constitution" would have began as soon as the Constitution was passed and the culprits are the Founding Fathers. Doesn't that incline you to think that it is your understanding of the Constitution that is defective, rather than the actions that took place?

    The judiciary has been, and continues to be, entrusted to interpret and apply the law. Congress was never charged with the task of providing for every contingency in the law and reducing it to writing. Your interpretation just granted Congress a huge responsibility (and power that is subject to misuse) that does not appear in the Constitution. The judiciary was not created to do reading comprehension exercises with the Constitution and the (alleged) volumes where Congress legislates every possible contingency and possibility. Your interpretation also makes much of Article Three pure surplusage.

    Usually when a person has an idea so unique that nobody else really supports it, it's either because the idea is so absolutely brilliant or monumentally stupid. I think your claim falls into the latter category. Your are so zealot to simplify things and reduce them to black and white standards... that you completely ignore the facts and incontrovertible truth of the matter.