[paraclete]

Well Tut it has been often said the law is a A$$ but what you going to do, the alternative is anarchy

[TUT317]

Well Tut it has been often said the law is a A$$ but what you going to do, the alternative is anarchy

Hi Clete,

I don't know. I'm just glad it is not our problem.


Tut

[tomder55]

yeah Clete you are right ...the people shouldn't decide the law

[TUT317]

yeah Clete you are right ...the people shouldn't decide the law

Hi Tom,

People can decide the law but in the end it has to be put into words. What the founding fathers intended counts for little. What they actually said is all that matters. Do you recall any SCOTUS decision handed down on the basis of intention? Don't they hand down decisions based on actual wording?

Tut

[tomder55]

Too frequently liberal judges expand the meaning of the words. They use this inane theory that the Constitution is "living breathing " . But the founders put in a system for amending so what this is essentially is a judge's intent to inject his/her meaning of the law and to change the Constitution to fit that judges predisposition.

Now I agree that often the words need interpretation and that is a legitimate role of a judge. But ,if there isn't an agreed upon framework on how the Constitution is to be interpreted ,then we are in 'Through the Looking Glass ' territory where words mean whatever an individual decides they mean.
Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

[excon]

Too frequently liberal judges expand the meaning of the words. They use this inane theory that the Constitution is "living breathing " .

Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

Hello again, tom:

I agree with you, except for the word "liberal". Right wingers too, make up stuff. Here's a good example... I've read the Fourth Amendment. It's INTENT is clear... The government can't search you WITHOUT a warrant... How else COULD you interpret it??

Nonetheless, the right wing - along with help from the left, passed the Patriot Act. IT says they DON'T need a warrant. Now, I don't know about you, but to ME, it's unconstitutional on its face.

Then I read above, how much you believe in "original intent"... You should excuse me if I'm a little confused..

excon

[tomder55]

I too have read the 4th and I don't see anywhere that a warrant is required for a search. That is a judges expansion of the amendment and a perfect example of the distortion I speak of .

Here is the text :

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It speaks of a protection against unreasonable searches and warrants issued upon 'probable cause ' . It does NOT say that you can't be searched without a warrant.

What happens is that the two clauses are combined into this misperception that only with a warrant is a search reasonable. You know in fact that is not true because no one has an issue when a cop searches an arrested perp for weapons and other things on their possession. So right off the bat you know that the 2 clauses are separate .

[excon]

I too have read the 4th and I don't see anywhere that a warrent is required for a search. That is a judges expansion of the amendment and a perfect example of the distortion I speak of .

Hello again, tom:

Without having a Constitutional argument right here, it's instructive to note that YOUR interpretation of what the amendment says is STILL an INTERPRETATION... Because when I read it, I have a DIFFERENT interpretation.. I don't think MY view is a distortion.

The key is that the document IS interpreted. I believe MY interpretation is what the founders intended. You believe YOURS is. Now, I COULD accuse YOU of distortion, but I'm won't. I'll stick with accusing you of having a different interpretation than I do.

excon

[speechlesstx]

Yes, you both have different interpretations. But what basis at all is there for this view that the constitution is a "living, breathing" document?

[tomder55]

I take my view from reading the debates in Congress leading to the actual language of the amendment. That is what I mean by originalism . By understanding the history ,I know why the amendment was considered . See next response for clarification.

[tomder55]

The history of the Fourth Amendment
Provides no support for the view that all warrantless searches
And seizures were condemned by those who framed and ratified the
Amendment. Far from requiring judicial warrants for all government
Intrusions, the framers of the Fourth Amendment viewed judicial
Warrants as an evil and sought to limit their use. Numerous
Statutes, regulations, and common law rules authorizing warrantless
Intrusions, all on the books during the colonial era and after
The adoption of the Constitution, appear to support the claim that
Many early Americans were not concerned with warrantless
Searches and seizures.' The history surrounding the Fourth
Amendment, provides no support for the notion
That the amendment grants individuals a right to be free from warrantless searches and seizures.' On the contrary, the plain language
And original understanding of the freedoms guaranteed by the Fourth Amendment do no more than prescribe that government
Intrusions be limited to reasonable measures.

In other words ; the people who demand warrants for everything have it backwards. The founders were more concerned with the absusive use of warrants issued for unreasonable purposes. That was the oppression they faced from the Brits, and that is what they were guarding against.

[excon]

In other words ; the people who demand warrants for everything have it backwards. The founders were more concerned with the absusive use of warrants issued for unreasonable purposes.

Hello again, tom:

That's an interesting INTERPRETATION... If it were TRUE, surly the Amendment would NOT have been written like it is. Because it says the exact OPPOSITE of what you say it says. In fact, it begins with "The right of the people to be secure in their persons, houses, papers, and effects...."

You're asking me to believe that the Amendment means the cops CAN search you WITHOUT a warrant as long as the search is reasonable... But, if the search is UNREASONABLE, they need a warrant. Is that not what you mean??

Really?

excon

[tomder55]

I'm going by what Madison said and what the founders were concerned about. What I'm saying is that the question from law enforcement is to show that the search was reasonable. I go again to the idea that a cop can and often searches a person when in the process of an arrest. There is nobody who says that is an unreasonable and unconstitutional search. Yet under what you said ;the cop would by necessity have to stop the arrest and get a warrant to make sure the person being arrested wasn't carrying something like a weapon that could be used against the officer .

I have studied the issue ;and am clear that the debate about the amendment centered on the issue of abusive use of warrants and not the unreasonableness of being searched without one. Indeed ;they found warrants as potent tools of oppressive governmental power,and were more concerned with that than warrantless searches. They were rebelling against the English search and seizure practices ;the general warrants and the writs of assistance utilized by
Colonial customs officers. ;not trying to adopt them.
The preference for warrants is a mid-20th century construct of justices like Frankfurter.

[excon]

There is nobody who says that is an unreasonable and unconstitutional search. Yet under what you said ;the cop would by necessity have to stop the arrest and get a warrant

Hello again, tom:

Nahhh... The right is not absolute. Limiting them while in police custody is NOT an unreasonable abridgment of the right...

I'm not suggesting that you aren't informed on the matter, tom.. As usual, you're better informed about it than I am.

I don't HAVE that history clouding what I read. Yes, it's probably a simplistic approach. Who ever said I was deep? That's why I LIKE the Bill of Rights. They're written in language I can understand.

excon

[tomder55]

True ;but given any question I usually defer to James Madison since he was the giant behind most of the Constitution (and thankfully Jefferson was on assignment ,and not around to screw it up) .

[TUT317]

Yes, you both have different interpretations. But what basis at all is there for this view that the constitution is a "living, breathing" document?

Hi Speech,

I think you just answered your own question. It extremely difficult to argue for.'original intent' for a number of reasons.

You can argue original intent until the cows come home. No one knows the original intent. The only ones who knows are the authors and we can't ask them because they are long since dead. All we have left are words on documents.

A constitution as a living and breathing entity is probably a reflection of how language works. Words change their meaning over time and continue to do so.

Not that long ago it was thought that if we can analyse language carefully enough it will reveal some type of underlying reality. We now know this is not the case. As we can see language can be a labyrinth of meaning.

Tut

[TUT317]

Thus the concept of "original intent" . The words of the Constitution should mean what the framers ,and the people who added the amendments meant them to be. Any other change should be subject to amendment.

Hi Tom,

That would be a surprise because I am sure there would be pages of debate as to what the words, 'original intent' actually means.


Tut

[tomder55]

Actually not in this case. Madison proposed the amendment.. there was some minor changes and then it was passed and also passed by the States. There was a general agreement that a "Bill of Rights " was needed ,and was in fact an implied condition of the Constitution being passed. (Alexander Hamilton actually made a point that "rights " were implicit in the Constitution and did not need enumeration but he was over ruled ) .

I am not a Constitutional Scholar ,but I would expect that justices that are making decisions on the Constitutionality of a law would have the backround and brains to be able to read the volumes of writings words and opinions that went into the crafting of the Constitution and the amendments . In short time one can find in the history ;especially in the " Federalists Papers " (Hamilton ,Alexander ,and John Jay's letters to the states arguing the case for ratification of the Constitution ) the EXACT Meaning of the clauses . The debates leading to each amendment are also very easily obtainable .
If a judge can read into the Constitution what the judge wants to read into it AND impose that meaning on the nation then we are not as free as we think.

[tomder55]

A constitution as a living and breathing entity is probably a reflection of how language works. Words change their meaning over time and continue to do so.

The founders in their genious gave us a legitimate way to change the document and yet preserve intent. It is called the (under used) amendment process.
It is the preferred method of updating the Constitution to reflect changes . So to say it's a judicial responsibility to impose 21 century values on the law is absolutely absurd and undemocratic .

[speechlesstx]

Hi Speech,

I think you just answered your own question. It extremely difficult to argue for.'original intent' for a number of reasons.

It doesn't change to suit the times. It's not clay that you can mold into whatever meaning you want, it's just not.