Aces High Bulletin Board
General Forums => The O' Club => Topic started by: oboe on June 26, 2005, 08:12:07 AM
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A couple of posters here, specifically I think Virgil Hilts and Seagoon, but probably many others, have voiced concern over SC interpreting the Constitution as a 'living document', that is, one whose meanings may change as the culture, circumstances and values of the Nation change. If I am correct, they feel only a strict interpretation of the original meaning of the Constitution preserves our Nation as it should, and anything else represents an erosion, or slide away from the way we should be.
So here is my question - how strict should a strict originalist be in his interpretation? Does it mean 'literal'?
For example, the 7th Amendment:
Amendment VII - Trial by jury in civil cases. Ratified 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Only a fool would claim twenty dollars in 1791 is the same as twenty dollars in 2005. Using a 3% inflation rate, over 214 years, the twenty dollars back then is equivalent to over $10,000 now.
So how do strict originalists interpret this?
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Follow it to the letter..If you want to start some crap over 20 bucks..then you can.
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yep.. the figure is meaningless. The intent is obvious and right. What about the intent should be changed?
I don't think inflation should be counted as "change" tho but..
If we had to keep the $20 figure in order to keep the rest of the constitution... I say let's keep the $20 figure but...
I would ask you... do you think that changing a number based on inflation is the same thing as removing a right guarenteed by the constitution?
do you equate inflation with rights?
lazs
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hell 8 years for a term was almost half a lifetime back in the pioneer days.
everyone knows humans live for nearly twice as long now as they did in 1776.
by your standards maybe we should raise the term limits to two 8 year terms instead of two 4 year.
Hey we could have GWB for 8 MORE YEARS!!!! ;)
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The Constitution allows for changes over time. It's called a Constitutional amendment...the people can amend the Constitution with 2/3 of the State legislators. Not five old farts on a court deciding based on their personal ideology.
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My best guess would be you have to try to determine their original intent without being constricted by literal interpretation, if the result of literal interpretation is at odds with common sense.
But I'm not sure everyone sees it that way. Seems like every $20 lawsuit requiring a jury would put quite a strain on the legal system. I wouldn't be surprised if this issued has already been legally addressed somewhere.
Laz, I would equate inflation with a change that renders literal interpretation of specific figures or values in the Constitution obsolete. But I don't think updating the 7th Amendment to a more current amount is equivalent to removing a right...
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when you decide to change the interpretation without actually changing the law you circumvent the process that is required for a bill to become law.
interpretations need to follow the intent when the law was passed. if you want the law to say something else then change it, but just deciding it should have a different meaning simply because you want it to mean something different should get a judge removed.
not that we should interpret an existing law to mean that. we should p[ass a new one to toss out judges who overstep their authority.
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Originally posted by Gunslinger
hell 8 years for a term was almost half a lifetime back in the pioneer days.
everyone knows humans live for nearly twice as long now as they did in 1776.
:D
Benjamin Franklin died in his Philadelphia home at 84 years of age
George Washington died at the age of 67
Thomas Jefferson died on July 4, 1826 at the age of 83
Samual Adams died at the age of 81
John Adams was ninety years old when he died of old age
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I agree with weasle.... If the 7th's $20 limit is a problem then there is a way to change it. The intent is still clear tho no matter what the amount. If you changed the amount to be much more than what inflation would account for then you would be changing the intent. If we had gone to a different monetary system that would not make the 7th null and void... you would just convert the money according to conversion rates/inflation or go through the process of modifying/changing the amendment.
If you put too many restrictions on firearms then you are changing the intent of the second.
If you make "hate speech" or "Hate acts" a crime then you are changing the intent of the first.
There is a huge difference between changing the intent of the constitution based on percieved changes in current morals and simply adjusting monetary values for conversions or inflation. Adjusting for inflation would not set a precident for changing on "what is hip this week" basis so far as intent is concerned..
but.. you knew that right?
lazs
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I thought we were in agreement until I read your latest reply.
I think maybe we don't agree on what the intent of the Amendment is? My take on it is that the intent was to ensure that the right of trial by jury was preserved in lawsuits involving significant dollar amounts ($20 in 1791 was a significant amount).
But $20 dollars nowadays is not a significant amount. So to a Constitutional literalist, the Amendmend guarantees the right to trial by jury for even the most insignificant of lawsuits. And I don't think that was the intent of the Amendment.
But I am not talking about adding restrictions to the 2nd Amendment or 1st Amendment (nor will any be forthcoming from me based on this discussion - its not a trick question).
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how are we not in agreement? there is a mechanism for change... if we haven't changed it then we should go with the $20 figure.
interpreting the "intent" is tricky. I do think that the $20 figure was not one of the better thought out parts of the constitution and needs to be changed if it is a problem because of inflation.
I still would be more comfortable tho thinking that inflation was meant to be taken into account than to think that free speech should be modified depending on what words are in or out this decade
lazs
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I agree the use of $20 as a standard in the Constitution was maybe not well thought out. But I wonder if the founding fathers had the notion of inflation in their day?
Also I agree that determining the intent can be tricky, which is why the role of the SC justices is so important. Like it or not, determining the intent is their job.
Here is where I think we disagree:
I say the intent of the Amendment was to ensure that lawsuits involving significant amounts of money have the right to trial by jury. By implication, lawsuits involving insignificant or trivial amounts of money do not have the right to trial by jury.
I think you are saying that the intent is exactly as stated: All lawsuits over $20 have the right to trial by jury. That means vrtually all lawsuits, even those involving as trivial amount as $20, have the right to trial by jury under the amendment.
There is a big difference in your position and my position if I correctly described your position.
Regards to the Amendment though, something must have already been done, because I have never heard of a $20 lawsuit involving a trial by jury. But whatever was done did not involve another Amendment to the Constitution, or changing this one.
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I don't think you have heard of many cases settled for $20... I know that in most places there is a mechanism for small claims court that allows you to bypass the expense and trouble of a jury trial for cases under amounts of say $1500... I believe that you are still welcome to the jury trial if you wish tho.
I believe that the intent of the amendment was for any case over $20 to have a trial by jury. I am not sure if inflation was even known about in those days.
I would not want the SC to determine if $20 took into account inflation.. I would rather that the amendmant be changed by the normal means than "interpreted" no matter what.... $20 means $20.
lazs
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Yeah, I'm not sure how far I'd get if I sued someone for $20 and demanded my constitutional right to a trial by jury. I don't think I'd even make it into small claims court, but I'm not sure.
Its interesting to me that in the case of this amendment, the application of the law would change drastically. In 1791, you had to have a fairly substantial lawsuit claim to get a trial by jury. Now, you are constitutionally entitled to a trial by jury in lawsuits less than $20.
Quite a huge change in the Constitution, thanks to inflation.
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Its a living document because it can be amended, not because it can be "interpreted"
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Wouldn't a quick, dirty way of looking at the 7th Amendment would be to:
1) Look to the Federal Rules of Civil Procedure, since the 7th Amendment would only apply to the federal courts.
2) Trust the FRCP as gospel since the (legal) gods themselves gave it to us (they're written by the SC, who are the arbiters of what's what and how to interpret the Constitution).
3) Look to FRCP Rule 38.
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What I'm saying is that:
1) the $20 dollar limiation was just placed there to ensure it was a controversy of some substance and not frivolous/whimsical. So the way it's interpreted today is that it's not literal and subject to period changes.
2) unless you're looking to mount a Constitutional attack on some matter, revisiting 7A would probably be less meaning full relative to just heading off to a FRCP vs. Article III courts analysis (but see next point).
3) since the SC writes the rules, and since the SC interprets the Constitution, you're rather limited in forums for an argument mounting a 7A attack based on the $20 limit, making the point kind of moot if it is expressly limited to the $20 issue.
4) My beliefs as to strict original interpretation is that it shouldn't be so. You'd be left with a document relevant only to the circumstances surrounding its drafting or at most any potention foreseeable situation. Since I believe that foreseeability decays exponentially relative to the temporal distance you're looking out ahead, you'd be left with a document that becomes obsolete too fast. I believe rewriting laws everytime situations change would undermine one of the reasons laws exist in a common law society -- which is to lend to predictability and stability. You would end up with a very incoherent amalgamation wherein every statute would be argued over it's relevancy each time the matter came up. After having dealt with matters in a civil code society before, I am pretty much against the daily (and what seems to be whimsical) interpretations that are handed out with each time an issue comes to the bar, which is what a strict original interpretation / re-write the code as necessary approach seems to lead me.
I'm not sure if my argument made that much coherent sense itself, but it's really hard to type on the fly in this little 2 inch wide gray box where I can see only a few lines of text at a time. Basically I'm saying that in my opinion, strict original interpretations don't work as you lose relevancy rapidly.
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khyon.. your arguement made sense... I simply dissagree with it.
I don't think that free speech or the right to keep and bear arms need to change with whim. burning a flag or yelling fire or owning a gun are the same now as they ever were. Calling someone a derogatory name has allways been "hateful" but... so what? how is it different now?
The ten commandments are an example of rules that are very old and written at a time that bears little or no resemblance to today.. Yet... they still work as they are based on inherant human morality.
I agree, and most would I think that the $20 number was "intended" to keep frivolous lawsuits out of court but... so what? It is written and while it is a minor and easy thing to interpret... is should not be.. it should be literal.. there is a way to change it.
civil law is much different and specific... civil law and modern law need to be a living thing because of inflation and other considerations.
The constitution was not meant to be all the law but an affirmation of human rights. The seventh works in that regard. Adding an amount is what made it vulnerable to time not the intent.
lazs
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Originally posted by Gunslinger
hell 8 years for a term was almost half a lifetime back in the pioneer days.
everyone knows humans live for nearly twice as long now as they did in 1776.
by your standards maybe we should raise the term limits to two 8 year terms instead of two 4 year.
Hey we could have GWB for 8 MORE YEARS!!!! ;)
There were no presidential term limits until the 22nd Amendment was passed in 1947. FDR was elected to 4 terms.
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Ahhh yes, King Roosevelt :D
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I don't think think that the points you brought up have changed much either, nor do I believe much of the Constitution or the actions they control have changed. I was more getting at if one held to such a strict interpretation so as to be literal only, one would be left with obsolescence. The common example of Article I limitations wherein one on a strict interpretation only view, would preclude the federal government from raising an air force is what I'm more aiming against. Those taking an original stict interpretation / literal constructionist view would require an amendment just to allow for the expansion of federal power. It is this concept of constant change for minor issues that would kill the system in my opinion.
As for the constitution being merely an affirmation on human rights, I don't agree there. My view is that the US Constitution is a limitation of Federal powers in a very legal sense, although the framework it creates may support human rights, whatever human rights are (I never really fully understood that concept deeply in my opinion -- always seemed kind of nebulous to me). I suppose I'm unsure as what you mean by all the law. But given that Art. I s1 allows for legislation, it appears that additional laws were intended to be created within its framework.
So I think we're a lot closer in opinion. Perhaps it's merely the way we express it, given the constraints of a 2x10 inch box of written text, that makes it appear we differ.
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I guess where we don't agree is that I feel that limiting governments rights is indeed reaffirming human rights.
I have no problem with strict interpretation and amendment.
If we want an army we should have passed an amendment that allowed taxation to support a military... Not an amendment that allowed taxing to support a government and then allowing them to use the money for whatever they wanted and to raise the taxes when they wanted more no matter what the reason.
It does no good to limit governments powers if you still step all over peoples rights by "interpretation".
lazs
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Looks to me like you two fundamentally disagree on how to interpret the Constitution. Laz favors strict, original, literal interpretation only, and offers the legislative amendment process as the 'fix' for sections that have become outdated due to changes in external conditions, i.e. 200 years of inflation and the $20.
Khyron feels the legislative process is unwieldy and strict interpretation leads to constant writing and rewriting of laws as conditions change. He favors changing the intent of the Constitution by allowing judges more lenient, flexible, and intiutive interpretations. Thus the body of law can remain more or less fixed, but its application can change in response to external changes without having to involve the legislature at every turn.
So you guys fundamentally disagree as I see it.
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The authors of the Constitution made a fundamental error, that is very understandable.
They assumed that men who were dealing with the Constitution and the rule of law would be honest, and have both common sense and common decency, along with integrity and the ability to reason.
I'm sure they never figured on anyone with the above qualities needing to be told the difference between $20 in the 18th century and $20 in the 21st century.
Besides, I'm sure they never imagined that the simple legal system they gave us would become so screwed up and completely perverted by the morons today who hold NONE of the qualities mentioned in the second paragraph, while exercising the controlling power over the system.
It is hard for great men, such as those who gave us the greatest foundation in the history of man upon which to build a great nation, who had just gone through such a trying time and learned some very hard lessons, to imagine how those lessons could possibly be lost on those who would follow, despite being far removed from those lessons. They had some inkling that it would happen though, since they gave us so many warnings against the mistakes that have so eagerly been made despite the lessons and their warnings. Those who refuse to learn from history are therefore doomed to repeat it.
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yep... they never figured that we would be having teams of lawyers arguing over what "is" means.
Still.... how hard is it to interpret the amendments? What is outdated about them (save the example of the 20 bucks) ?
No... you still have state and local law to be "flexible" within the broad confines of the federal document.
basic limitations on government (or human rights in my way of looking at it) are written in the document... they need no interpretation and they are as sound now as they were then... anything that changes the fundamental nature of men or government can be dealt with as it happens... when we have clones or talking dogs or whatever... there is a mechanism for that as well as correcting minor things like the $20
put another way... How many people would oppose the $20 limit be tied to inflation? Not many I would guess... the amendment would sail through. So.... do it.
lazs
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There's a few things outdated, but really not bad for over 200 yrs. Things like the Quartering of troops, the prohibition and then repeal of alcohol, etc. I would also rewrite the 2nd amendment to be clear and specific as to why we want armed citizens - to allow citizens the right of self protection and to keep alive the threat of armed rebellion against a government that has become tyrannical. I don't like the 2nd amendment being predicated on the need for militia - I find that too vague and possibly even obsolete.
The good thing about change by amendment is that it gets discussion by representatives of the whole country talking about it, the bad thing is the inefficiency and expense of going through the legislature.
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I'm not so sure limitations against the quartering of troops is that outdated -- at least in light of a potential argument one day that some state decides that it would be much more efficient use of the land your house is on if it were to quarter troops...
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I would also rewrite the 2nd amendment to be clear and specific as to why we want armed citizens - to allow citizens the right of self protection and to keep alive the threat of armed rebellion against a government that has become tyrannical. I don't like the 2nd amendment being predicated on the need for militia - I find that too vague and possibly even obsolete.
In a lot of places it has somehow boiled down to the right to hunt or target shoot. What good is that (insert scary featured rifle here) for hunting?
What does hunting have to do with the 2nd ammendment? I suppose technically we should be allowed to own machine guns (easily) grenade launchers and ammo, stinger and tow missiles. Not going to push for that though :)
Charon
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Hunters and target shooters notwithstanding, I think the real issue is fear of crime and fear of government.
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Absolutely Oboe. That was my point. Somehow, in some areas, the fact that various types of rifles and pistols aren't useful for hunting is supposed to mean something where the 2nd ammendment is concerend.
As in politicians saying "How many hunters use that..."
Charon
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The department of justice and..... I, would disagree with you. We believe that the meaning of the second is quite clear. The term "people" means the same thing in it as it does in 16 other places in the constitution. A militia may be needed again... you certainly would want a population that is familiar with firearms and comfortable with them.
I do think that people who look at the ability to defend yourself as a human right like the original writers of the constitution need to push for a ruling tho on the second... fighting a defensive battle against the anti gun nuts and UN is not gonna get us anywhere except more and more restrictions.
Let's get it out in the open... Does "shall not be infringed" mean what we think it does?
I don't want to modify it by interpretation and "what is hip today"... I simply want the original intent to be made clear. I believe that the DOJ's lengthy study is a good one
http://www.usdoj.gov/olc/secondamendment2.ht
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I hope you're not disagreeing with me. I fully accept and support and think its very clear what the definition of people and militia are. My point is that others seem to be apply that definition to what is acceptable or not in a firearm.
I personally don't plan on hunting with the Russian capture K98k I spent all last weekend cleaning up, but I am going to shoot it some once I get the headspace gauge. The same for the original feature 1944 Inland M-1 carbine that should arrive next week, if it doesn't suddenly become an "assault rifle" at some point down the road.
Charon
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no charon.. I am not being very clear I guess... What I am disagreeing with is that the amendment needs to be modified to be more hip and modern... It is fine as it is and, as you say, the intent is clear as is the meaning of the words in it.
I would like to have a ruling on just what the words mean. "people" is simply that... an individual right. I would like to get that out in the open and get a SC ruling on it.
The DOJ document is a good and comprehensive study..
If the anti gun nuts don't like the ruling that makes "people" mean the same as it does everywhere else in the constitution then it is they that can change the amendment.
I think it is fine and clear as it is.
lazs
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I would like to have a ruling on just what the words mean. "people" is simply that... an individual right. I would like to get that out in the open and get a SC ruling on it.
I agree completely. It seems so clear from the support documentation that it would be hard for the SC to find otherwise -- I hope.
Charon
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charon... that is my point... I am really really tired of my right to bear arms being chipped away at because we (gun rights people) are too frieghtened to get it all out in the open in one big winner take all clash between us and the anti gun nuts...
Seems to me that the worst we could come out is somewhat better than we have it now.
Unless.. the dems put in a couple more SC judges from the politburo of the Kalifornia 9th district... then we might have the interpretation that "people" means a collective as in "it takes a villiage" kinda people or in "peoples republic of" kinda people but... that is happening anyway so let's just get it all out in the open.
In defense of the NRA and other second amendmenat defenders.... the anti gun nuts are just as frightened... they don't want to force the issue either... So far...they feel safer chipping away at our rights and we feel safer defending our rights each time they make an attack.
http://www.usdoj.gov/olc/secondamendment2.ht
The Department Of Justice report, coupled with the very real possibility of new sympathetic SC's is a good enough reason to get a ruling on this whole mess.
lazs