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clinker
Trad climber
Santa Cruz, California
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God help those that f#ck with the USA.
Leave us alone and we will hapily fight amongst ourselves.
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Lollie
Social climber
I'm Lolli.
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Dingus, she and Thor are buddies, you know that, dontcha?
Gary, didn't know. That's cool. I wrote a variation back then, but forgotten most of it.
I pledge allegiance to the black flag of anarchy
no nation, no god...
nowadays I'm cynical and don't pledge allegiance to anything. :-D
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Fat Dad
Trad climber
Los Angeles, CA
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Why is the Constitution so deliberately vague? James Madison discussed this very issue in one of his Federalist Papers (forget the number). The concern was that drafting it to include a specific litany of enumerated rights must subject it to the interpretation that those rights omitted are prohibited, a result that the Framers did not expressly intend.
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JEleazarian
Trad climber
Fresno CA
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Am I to assume, zBrown, that the information has been suppressed by "intimidation" all this time, when other information on any variety of people and issues seems to leak out despite far more "suppression" and "intimidation?"
I find the idea of the existence of suppressed or otherwise "secret" information establishing that Thomas lied and Hill told the truth absurd given the realities of contemporary American politics -- or, really, the American political reality of any era.
John
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madbolter1
Big Wall climber
Denver, CO
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James Madison discussed this very issue in one of his Federalist Papers (forget the number). The concern was that drafting it to include a specific litany of enumerated rights must subject it to the interpretation that those rights omitted are prohibited, a result that the Framers did not expressly intend.
Actually, the argument you mention was explicitly against there being a Bill of Rights, which the anti-federalists wanted. I believe it was actually Hamilton (in a FP numbered somewhere in the 80s) who argued that a Bill of Rights would have the opposite effect desired by the anti-federalists. They were deeply concerned about a federal government that would quickly or eventually grasp all power unto itself. The Bill of Rights was designed to explicitly limit the powers of the federal government (correlatively, to explicitly empower the states and the people on those very points).
Hamilton (I believe) argued as you stated above, that enumerating rights in that fashion would have several baleful effects:
1) The enumerated rights would then be presumed to be GRANTED by and inhere in a particular form of government, when both anti-federalists and federalists alike would deny that idea, believing as they did in "natural" or God-given rights that in no sense inhered in government.
2) The enumerated rights would be presumed to explicate the rights granted to the states and people, with the federal government presumed to have any rights and powers not thus precluded to it.
3) Before long, people would forget the history and principles involved in the debate, and they would then come to believe that debate about the phraseology of the amendments would be tantamount to debating the existence of the rights themselves. (This argument derives from a smattering of arguments sprinkled across several FPs.)
What people today completely forget is that both federalists and anti-federalists alike were committed to a VERY limited federal government, coupled with VERY robust states' rights. The federalists wanted a more robust federal government than could be reflected in any form of confederacy (which is the form of government the anti-federalists favored).
Were there no Bill of Rights today, we would, as Hamilton argued, have fewer arguments about the powers of the federal government, because the Constitution was quite clear regarding exactly what powers the feds were to have... with ALL other powers and rights presumed to reside in the states and the people.
Thus, there would be little debate about federal abortion legislation: the feds would have to fight a steeply uphill battle to demonstrate how this is NOT a states' rights issue. Same with gay marriage. Same with gun control. Same with health care. Same with... well, virtually anything we now look to the feds for.
Neither the federalists nor the anti-federalists imagined a federal government of the sweepingly invasive powers that the feds are now presumed to have. And the Bill of Rights actually has performed pretty much exactly as Hamilton predicted it would.
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HighTraverse
Trad climber
Bay Area
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coupled with VERY robust states' rights. As I pointed out above, led to the 14th Amendment (1868) which empowered the Federal Government to enforce the end of slavery on the south.
Even though the slaves had been previously freed by the 13th Amendment (1865)
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madbolter1
Big Wall climber
Denver, CO
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I think we have to temper good principles from the past with our modern society and find some compromise i.e. "good fit" which respects both realities.
Yes, and as HighTraverse notes, the 14th amendment was really redundant.
The examples you raise, coupled with HighTraverse's point, could have (and in many cases have) been addressed by the interstate-commerce clause in the Constitution (no amendment needed); that could have been employed to handle slavery (certainly interstate commerce related!) as well as interstate highways, radio frequencies, airliner travel, and a host of other issues.
In fact, the commerce clause has been the most widely MISused of the powers that were explicitly granted to the feds, which indicates the many legitimate uses it could have been put to without any need of additional amendments.
What we need now are amendments to explicitly define the scope of the commerce clause, due it its flagrant misuses. So, what amendments hath wrought, amendments will now need to properly define, in order that the principle of states' rights (and, of course, the rights of individuals) can be upheld.
Yes, there is a constant tension between state and federal powers, as there has been from the inception of the Constitution. And that tension is often politically "resolved" in the form of legislation and SCOTUS interpretation. But I am an inveterate originalist, and I do think that the "proper" resolution of said tension on a case by case basis can be derived from the founders' publicized intentions. There's nothing "modern" that can't be addressed by the Constitution interpreted according to the founding principles.
Federal oversight of....
Interstate highways, the railroad and trucking industries: yes.
Abortion: no.
Gay marriage: that's a complicated one, because of tax issues, social security, etc. I'm inclined to say: yes. Although, that's a gut-reaction that I have not thought through well enough yet.
The point is to tease out the applicable principles of governance and then apply them in non-politically-laden fashion. (Yeah, right!)
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zBrown
Ice climber
Brujo de la Playa
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JEleazarian
All what time?
Look at the dates, while you're reading. I went back and highlighted it for ya.
This is old news, but that doesn't make it false.
It was a narrow vote margin way back. In today's world I would bet Thomas whould not have been confirmed, nor should he be. There are/were a lot of much better candidates.
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madbolter1
Big Wall climber
Denver, CO
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I am curious as to why you single out abortion. You mention it several times. What is so special about abortion in this context.
Several reasons:
* It's been a recent thread of debate, and some people here were on that thread as well.
* Abortion remains a very hot-button issue; as I've mentioned elsewhere, the Rebumblecon party remains hamstrung by a primary system that panders to the religious fundamentalists on this topic, which makes their nominee generally unelectable. This stupidity would go away if people widely recognized this as a states' rights issue.
* It's a classic example of the feds injecting themselves into the everyday lives of citizens. Even if abortion were murder, local municipalities and states themselves address the crime of murder. We don't need (nor want) the feds injecting themselves into every phase of every crime. So, lets states call (or don't call) abortion "murder" as they see fit. Nowhere in the Constitution are the fed empowered to deal with such matters, and abortion is a classic example of how we now look to the feds for EVERYTHING!
There are more reasons, but this post is long enough.
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madbolter1
Big Wall climber
Denver, CO
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The first amendment, or the free speech part of it is stronger than ever due to the internet. What worries me is that the Supreme Court is now equating money with speech, and giving corporations the same rights as persons.
The threat of an increasing oligarchy is now huge.
Agreed!
But the biggest reason why corporations are such a threat to the fair and representative political process is the congress-critters themselves. EVERY one of them (virtually all) that fairly-recently voted to overturn campaign finance reform literally hung up a shingle proclaiming "Open for business," knowing that the shingle was posted high enough that only corporations could see it. The average American cannot give millions to election campaigns; now corporations can. Every one of those bums should be voted out in the relevant upcoming election cycles.
The mantra of America should be: "No incumbents." Let's see if after a house-cleaning (no pun intended) the (new) bums realize that they work for US!
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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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If the framers supported the originalist school of thought why would the constitution provide an amendment procedure?
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bluering
Trad climber
Santa Clara, CA
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If the framers supported the originalist school of thought why would the constitution provide an amendment procedure?
Simply because they saw that things may change, or require tweaking. The beauty is that they set forth pretty strict standards to amend the Constitution. It took a major consensus of States.
Mark Levin's book on "The Liberty Amendments" is a very good read on a little known clause to change the Constitution. It's still difficult, requiring a consensus of States, but takes a different tact. The States can rebel against the Fed and legally (Constitutionally) bypass the Congress.
The book is a must read.
Just bought Sandefur's "The Conscience of the COnstitution", but have yet to get going on it.
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madbolter1
Big Wall climber
Denver, CO
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The originalist doctrine is absurd.
Only if you misunderstand it.
"Originalism" does not suggest that the Constitution cannot be modified, which is your obviously straw-man view of the position.
What it actually means is that we look to the original intent of the framers regarding the PRINCIPLES behind the verbiage. Those can be pretty easily deduced from the framers' writings. And it means that we can use those PRINCIPLES when we attempt to interpret the MEANING of the verbiage of the Constitution.
If you decry ALL of "originalism," then you are left with exactly zero connection to the principles upon which this nation was founded, and then your "constitution" means whatever a fickle majority take it to mean at any given moment.
THAT is both absurd and flies directly in the face of what Hamilton said about majority faction.
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TGT
Social climber
So Cal
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The originalist doctrine is absurd.
Only if you misunderstand it.
no, only absurd to a Marxist.
they don't misunderstand it,
they hate it,
it obstructs their agenda.
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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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So when I interpret the 13th amendment I should look at original intent? Sorta doesn't work.
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madbolter1
Big Wall climber
Denver, CO
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So when I interpret the 13th amendment I should look at original intent? Sorta doesn't work.
Are you being intentionally dim or just combative?
Was the 13th written by the founders? Uhh...
Maybe that's why we don't try to be originalist about such things. And if people were more originalist when the 13th was composed, they would have realized that we don't need it.
You are also really misusing the word "absurd." Do you know what the word actually means? It does not mean, "something I find ridiculous," or, "something I really, really don't like," or anything along those lines.
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madbolter1
Big Wall climber
Denver, CO
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Well the first part of your statement is true enough but I fail to see how making abortion a state's rights issue is going to produce any more electable candidates.
The problem for the Rebumblecon candidates as it presently exists is that they CANNOT be moderate and still win the primary. So, your idea that a candidate from an anti-abortion state could still end up with the nomination doesn't really respond to the present problem. As it stands now, you CANNOT get the nomination without taking a vociferous stand against abortion, while if abortion became a purely states' rights issue, a truly moderate candidate COULD get the nomination and then go on to be generally electable.
Of course, if the Rebumblecons still insisted on putting up right-wing-religious candidates anyway, well, then nothing can save them. But there would be no REASON to do so if abortion were a states' rights issue. In that case, the Rebumblecons could intentionally go for moderate candidates rather than pandering to their "base," and in the general election they would have a much better shot at reaching the "undecided" and "unaffiliated" voters.
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bluering
Trad climber
Santa Clara, CA
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while if abortion became a purely states' rights issue, a truly moderate candidate COULD get the nomination and then go on to be generally electable.
Well, Hillary, Obama, and the usual Establishment as#@&%es do this all the time.
Just say sh#t to get elected. Never say anything that isn't Mainstream.
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