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Indeed, commerce in the eighteenth century included the trade in slaves so a loose intrepretation of the commerce clause would suggest the trade in slaves is permitted even if failure to pay people for the work they do isn't, or holding people against their will isn't

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Nonsense. Slavery was a human rights violation that has been corrected . Commerce is a transaction in goods and services The elimination of slavery doesn't change the definition of commerce.

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Originally Posted by TUT317

Hi Tom,

I think we have been down this path before. You seem to be using Originalism and Original Intent as being one and the same. This is not a valid comparison. However, leaving that aside

You say:
"......interstate commerce was pretty much a free trade zone". Is this an example of clear language? How would you define, pretty much?

I don't think the Commerce Clause is an example of clear and precise language. In fact I don't think we can go past the word, 'commerce' before we run into trouble. You have an exact definition for the word, 'commerce?'

Before you throw in Humpty Dumpty in will repeat my previous argument. Those who control the language control the reality. In this particular instance, and every other, those who control the language are the people of that particular age.

The people who control the language of this age are the general public. Or what, reasonable people understand by the meaning of words. People of a different age would have had a sightly different meaning for the word. It is possible that 'commerce' as it applied to the past may prove to be incompatible or even a contradiction when examined in light of today's meaning.

Tut

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I don't need to dance on the head of a pin . All I need to know is what the founders meant by commerce ;and they authored enough so one can easily determine that they were in agreement that the powers they gave the Federal Government were limitted and enumerated .

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Originally Posted by tomder55

Nonsense. Slavery was a human rights violation that has been corrected . Commerce is a transaction in goods and services The elimination of slavery doesn't change the definition of commerce.

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Hi Tom,

Wasn't there some sort of agreement that protected the interest of slave owners by preventing congress from taxing and exporting good from state to state.

If this was the case then the definition of commerce back them included slavery. Commerce today doesn't include slavery therefore the definition of commerce has changed.


Tut

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Originally Posted by tomder55

I don't need to dance on the head of a pin . All I need to know is what the founders meant by commerce ;and they authored enough so one can easily determine that they were in agreement that the powers they gave the Federal Government were limitted and enumerated .

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I am glad you are happy with your definition, but other people are not. If you were a Constitutional lawyer then you would need to dance on the head of a pin when defining commerce.

Tut

You don't like Humpty Dumpty ;but that is the only take that applies . If the meaning the founders understood doesn't apply, then the document should be scrapped and a new governing document created. The one thing that is close to intolerable in the current system is leaving the ulimate arbitration to the handful of politically appointed for life judiciary.

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Originally Posted by tomder55

You don't like Humpty Dumpty ;but that is the only take that applies .

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I quite like Humpty Dumpty. Lewis Carroll started us out on the path to understanding language.

It is a very seductive argument to think that words like 'commerce' have a clear and precise meaning. It is just as appealing to believe these words retain their meaning over time. However, we know these accounts are wrong.

We are all masters of a common language. This is were we get our meaning of words. Most people of the 18th century got the meaning of commerce from the institutions and practices of their time. What they didn't know was that many words don't have a precise definition.

In the 21st century we are master of the common language. We also get our meaning and understanding of the word, 'commerce' from the institutions and practices we experience. Unlike the 18 th century we know that many words don't have a precise meaning

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Originally Posted by tomder55

If the meaning the founders understood doesn't apply, then the document should be scrapped and a new governing document created. The one thing that is close to intolerable in the current system is leaving the ulimate arbitration to the handful of politically appointed for life judiciary.

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Not necessarily. If we give away original intent then this will help clarify the issue somewhat. I suspect Justice Scalia is a textualist for an important reason. He is not an original intent-ist, he is not a strict constitutionalist and he is against the 'living breathing' version. I think he is a textualist because he would agree with my arguments on language. Perhaps he feels being as a textualist he can as far as possible avoid passing legislation from the bench.

As a textualist he could see the benefit of implementing a decision based on the common understanding of the words congress used when framing legislation. In doing this he might think that the role of SCOTUS is diminished.

Tut

Scalia Defends Originalism as Best Methodology for Judging Law

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Originally Posted by tomder55

Scalia Defends Originalism as Best Methodology for Judging Law

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Hello again, tom:

So, if precedent can be adjudged NOT to be originalist, judicial activism is in order...

I understand...

excon

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Originally Posted by tomder55

You don't like Humpty Dumpty ;but that is the only take that applies . If the meaning the founders understood doesn't apply, then the document should be scrapped and a new governing document created. The one thing that is close to intolerable in the current system is leaving the ulimate arbitration to the handful of politically appointed for life judiciary.

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Ah now, at last, we have reached the nub of the argument. If the passage of time has changed things so the ordinary meaning of what the founders understood no longer applies then it is an anachanism to attempt to continue to intrepret their writings in the context of today's reality. Your constitution has become the toy of those politically appointed judges and surely that was not original intent

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. Your constitution has become the toy of those politically appointed judges and surely that was not original intent

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Indeed it was not. Unless you believe that the Supreme Court is infallible then allowing the Supreme Court to be the sole arbiter of Constitutionality is flawed.Too many obviously bad decisions by the court proves that the power they have seized makes them a superior unequal branch .That is too much power for an unelected branch of government... espeically one occupied by life time appointees.

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Originally Posted by tomder55

.That is too much power for an unelected branch of government ....espeically one occupied by life time appointees.

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Well Tom you know there is only one answer to the unelected branch of government, I believe you applied it once with some interesting results

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Originally Posted by excon

Hello again, tom:

So, if precedent can be adjudged NOT to be originalist, judicial activism is in order...

I understand...

excon

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Hi Ex,

Yes, I think this correct. I'm not a lawyer, but I would think that SCOTUS needs to take into account precedent when it comes to handing down a decision. It would be irresponsible not to give some weight in this direction.

It seems to me that it makes no sense to make a ruling based on a 'previous moment in time' (original intent if you like) and apply it to this 'moment in time'. By 'moment in time' on this occasion I mean the previous decisions handed down in subsequent cases(precedent). To put it another way, would make no sense to hand down a decision in a vacuum.

The obvious question is which one do you favour? I wouldn't worry too much about what Scalia has said in the above clip. He shows us his political hand right at the beginning when he says that it is his burden not to show that originalism is perfect but to show it is better than everything else.

Hey, I know language isn't perfect but politics is his original intent. Anyway, I'll check his history in order to confirm my beliefs.

But I think you are right they are in conflict most of the time and this conflict would probably result in legislation from the bench.

Tut

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Hello again, tom:

So, if precedent can be adjudged NOT to be originalist, judicial activism is in order...

I understand...

Excon

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There is a lot of precedent that deserves reversing because it was wrongly decided. Note the court got Dredd Scott ,Plessy and Korematsu all horribly wrong(among others ).

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Originally Posted by paraclete

Yes misquote as distinct from not being able to put two words together coherently. I doubt all his speeches are off a teleprompter otherwise there is no excuse for getting it wrong, fire the speechwriter. He would look much better if he had had some of his policies accepted, being a lame duck can't be fun

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Umm I suspect otherwise. He doesn't stumble over his words like Bush did when he was being too cautious in his replies . Instead he makes gaffes that the White House has to carefully walk back. Yesterday ,as an example,during his presser , he told the country that the private sector is doing fine.

http://www.realclearpolitics.com/vid...oing_fine.html


http://www.realclearpolitics.com/vid...oing_fine.html

I'm sure you recall this gaffe that followed John McCain until the end of the 2008 elections : (paraphrase)" the fundamentals of our economy are strong." I wonder if the dinosaurs will frequently quote the President assessment of the health of the private sector throughout the campaign ?

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Originally Posted by tomder55

Umm I suspect otherwise. He doesn't stumble over his words like Bush did when he was being too cautious in his replies . Instead he makes gaffes that the White House has to carefully walk back. Yesterday ,as an example,during his presser , he told the country that the private sector is doing fine.

Obama: "The Private Sector Is Doing Fine" | RealClearPolitics


Obama Backtracks: "It's Absolutely Clear Economy Is Not Doing Fine" | RealClearPolitics

I'm sure you recall this gaffe that followed John McCain til the end of the 2008 elections : (paraphrase)" the fundamentals of our economy are strong." I wonder if the dinosaurs will frequently quote the President assessment of the health of the private sector throughout the campaign ?

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Um no, they will methodically note how he walked it back. Count on it.

Yeah he kind of blew it, but then your boy Mitt doubled down on his own idiocy

Mitt Romney: We don’t need more cops, firefighters or teachers - The Plum Line - The Washington Post

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Romney said of Obama, “he wants another stimulus, he wants to hire more government workers. He says we need more fireman, more policeman, more teachers. Did he not get the message of Wisconsin? The American people did. It's time for us to cut back on government and help the American people.”

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It's a wash, and maybe they both should take a time out and regroup the messaging.

No Romney got it right. The President wants to double down on his previously failed stimulus plan .

You saying it fails goes against both conservative and progressive economist in general, and the data that's available. The data also shows that congresses failure to follow through has started contracting the economy, and slowing growth.

Economists agree: Stimulus created nearly 3 million jobs - USATODAY.com

If the job creators where fair, and not greedy, they would create jobs for more than politicians, and we wouldn't need a stimulus.

Team Obama finally decided that the historical Obama might be a bit much so they quietly removed the Obama bullet points from presidential bios.

Now that he's merely human again let's all join Michelle in wishing him a Happy Father's Day!

Oh, he's not your father?

Who's your daddy ,and what does he do ?