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I wonder what our forefathers would think if they were to see how the document that they labored over is being twisted and bent. We have those both right and left who love to talk about what the document actually means. They try to say what they really meant was... Or the intent was... How about it says what it says and there are no hidden meanings.
Can anyone honestly believe that our forefathers could have predicted terrorist bombings? Do you think that they would have cared even 1 bit about saving the life of a mass murderer and not putting him to death?
I understand that the constitution was meant to be a living document adaptable to changes of the world at large. I simply doubt that our forefathers would have been concerned in the least for rights of the worst criminal element to man. I also think if they could see what todays lawyers have become they just might have scrapped a large portion of the constituion. Not because it wasn't a fine work but because of how it would be manipulated in ways it was never intended.
The authors of the Constitution understood it to be a document for their times. They spoke on many an occasion of their explicit wish not to bind future generations under a tyranny of their forefathers, long dead. They earnestly hoped and encouraged future generations to exercise the rights that they had exercised -- to amend and adapt and as necessary replace the Constitution, knowing that the earth belongs in their moment always to the living. As better than two centuries have now gone by, American society and the men and women who live in it have changed a great deal. But we have chosen to keep that same Constitution, convinced that the basic principles of self-government that it proclaims are as valid and worth protecting today as on the day they were first written down. Instead, we have used an accumulation and evolution of jurisprudence to make necessary adaptations to the peculiarities of our own times. Neither I nor anyone else can say with any confidence what the founders might think of all this if they were to have the chance to judge, but I suspect that they would be both rather surprised and rather impressed. Then, I suspect, they would want to go to Disney World...
Last edited by saganista; 12-03-2007 at 12:53 PM..
Well stated, Sag. I think the authors would be struggling with the difficulties associated with all of the changes to our environment, such as the establishment of the internet, and how it would fit within the rights of individuals regarding free speech.
I'd love to hear them debate our current taxation process, and responsibility splits between the states and federals.
To say that the founding fathers didn't know islamic extremists is a bit of a stretch. While it was on a much different scale, the attacks on American sailors between 1785 and 1793 were seen as terrorist attacks.
The problem, imho, isn't with the Constitution, rather with the Supreme Court's adherence to stare decisis. We allow previous court's interpretations of the Constitution to dictate how we rule... and that puts great power and trust in prior Justices, too much imho.
The problem, imho, isn't with the Constitution, rather with the Supreme Court's adherence to stare decisis. We allow previous court's interpretations of the Constitution to dictate how we rule... and that puts great power and trust in prior Justices, too much imho.
Stare decisis is the bedrock of continuity in the law. Without such continuity, the law becomes undependable. There can be no confident expectation, hence no Rule of Law, and hence no commerce beyond the most rudimentary forms. Stare decisis is not slavery to the past, it is a reminder to check in with the wisdom of the past, and to disturb it only when the cause in doing so is either great or urgent...
I think the authors would be struggling with the difficulties associated with all of the changes to our environment, such as the establishment of the internet, and how it would fit within the rights of individuals regarding free speech. I'd love to hear them debate our current taxation process, and responsibility splits between the states and federals.
I would guess that they would rather quickly just add the word internet into the First Amendment somewhere. Amendment-1 is the implementation side of freedom of conscience, the founders having been well aware that freedom of conscience is useless unless the products of it can be articulated and debated. I'm not so sure that things would go as quickly on the taxation and federalism questions, though. We'd have some explaining to do, I think. Stuff like the Civil War, for one...
The Justices swear an oath to uphold the Constitution, not stare decisis. By relying upon precedent, you are relying on the prior Justices' ruling not to be politically motivated.
As we build decisions upon past decisions upon past decisions, we stray further away from the intent of the Constitution. Our Justices shouldn't ignore precedent, but they shouldn't revere it either.
The Justices swear an oath to uphold the Constitution, not stare decisis.
The Court handles fewer than 100 cases per term. How effective at upholding the Constitution do you think they could be if they had to entertain every case de novo, and did not use the process of certiorari to apply stare decisis to cases submitted that are already covered by well-settled law? The court takes up cases that are new, or that involve issues wherein contradiction has arisen in the rulings of inferior courts.
Quote:
Originally Posted by twojciac
By relying upon precedent, you are relying on the prior Justices' ruling not to be politically motivated.
The matter of whether a prior ruling was politically motivated is not material. The question is whether the ruling as handed down is worthy of continuing to stand as precedent, and hence as settled law, given that a cause for change must be either great or urgent.
Quote:
Originally Posted by twojciac
As we build decisions upon past decisions upon past decisions, we stray further away from the intent of the Constitution.
Upon what is that statement founded? Why is it not that successive decisions hone conformance to intents or merely apply the same intents to broader and broader ranges of circumstances?
Quote:
Originally Posted by twojciac
Our Justices shouldn't ignore precedent, but they shouldn't revere it either.
They don't currently do either one. You have no complaint.
How stare decisis Subverts the Law
I did read part of this. It didn't cut very much mustard, imho...
The problem, imho, isn't with the Constitution, rather with the Supreme Court's adherence to stare decisis. We allow previous court's interpretations of the Constitution to dictate how we rule... and that puts great power and trust in prior Justices, too much imho.
The reality is, however, that the judicial branch is by FAR the "least dangerous branch." You should never fear a runaway court, as they cannot act without the executive or legislature implementing their proclamations. AND, nothing comes to the Court without first being an action by another branch of government.
Fear a runaway judiciary or executive instead, as THEY truly affect all of our lives in much more tangible ways.
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