"Reed R. Heustis, Jr." <Reed@ReedHeustis.com> wrote:
:|
:|"Dave Morris" <DaveMorris@hawaii.rr.com> wrote in message
:|news:x1Y4e.6871$kk2.443@twister.socal.rr.com...
:|> Is our Bill of Rights necessary? Does it put a limit on our
:|> government, or on our liberty? Do these ten amendments hold the same
:|> meaning today as they did two-hundred and fourteen years ago?
:|
:|
:|Hi Dave,
:|
:|The Bill of Rights hold the exact same meaning
:|today as they did two hundred and fourteen
:|years ago. The only thing that has "changed" is
:|the interpretations given to it by people, mainly
:|judicial officers, which lead to unconstitutional court
:|decisions, not to mention unconstitutional acts of
:|the legislative and executive branches.
buckeye-...@nospam.net Aug 15 2004, 10:01 am
Newsgroups: alt.education, misc.education, alt.politics.usa.constitution,
alt.parenting.solutions, misc.kids, alt.activism.children,
alt.parenting.spanking
Date: Sun, 15 Aug 2004 13:01:59 -0400
Local: Sun,Aug 15 2004 10:01 am
Subject: Re: Buckeye, I'd like you to meet Mr. Madison
"Nathan A. Barclay" <nbarc...@hiwaay.net> wrote:
:|
:|"Bob LeChevalier" <loj...@lojban.org> wrote in message
:|news:irkmh05ebo5p3kkjqjduhtkrmghp6kicbt@4ax.com...
:|> "Nathan A. Barclay" <nbarc...@hiwaay.net> wrote:
:|
:|> > Under this concept, James Madison's role in developing the First
:|> > Amendment does NOT give him special authority regarding its
:|> > meaning. In interpreting what the words mean in and of themselves,
:|> > Mr. Madison has neither more nor less authority than anyone else.
:|> > And in interpreting the intent, it is how the Amendment was viewed
:|> > by the States when they ratified it that counts most. What James
:|> > Madison personally intended for it to mean is relevant only to the
:|> > extent that it can be shown that the States ascribed the same
:|> > meaning to it that he did.
:|>
:|> So you disavow the standard right wing arguments for "original
:|> intent"?
:|
:|James Madison's ideal was to let the Constitution's actual words speak for
:|themselves, and I share that ideal insofar as is practical.
REALLY?
(1) You are a long way away from becoming a Madison scholar.
(2) I could take the time and look for some writings of Madison that talk
about how the meaning of words change
(3) Why don't you talk to us about Madison and the First National Bank
(which he opposed based on Constitutional language and the National Bank
he supported based on the Constitutional language or his understanding of
both.
(3) Why don't you talk to us about this:
NEGOTIATING THE CONSTITUTION, The Earliest Debates over Original Intent. By
Joseph M. Lynch
Everyone--Madison, Hamilton, James Wilson, Elbridge Gerry, and many
others--engaged in opportunistic argument, invoking 'original intent' when
convenient, denouncing it (or simply changing the subject) when not. Almost
no one felt any strong duty to be consistent is making constitutional
argument."
Reviewed By Sanford Levinson
Negotiating the Constitution can be read as a sequel to Jack Rakove's
0riginal Meanings, which closely analyzed the debates at the Philadelphia
Convention and the ensuing state ratification debates in order to ascertain
the likely "original understandings" of some basic constitutional ideas.
Rakove's final chapter discussed the attention paid these understandings as
the new government got underway and actually had to confront the tasks of
governance. What was the subject of the necessarily sketchy chapter by
Rakove is fully developed in Lynch's fascinating book, as he details
constitutional argument in the Congress (and elsewhere) between 1789 and
1800.
Defining "Necessary and Proper"
A central focus of Lynch is the "Necessary and Proper" Clause that
concludes the listing of congressional powers in Article 1, Section 8 of
the Constitution. Did this enhance congressional power, as feared by many
opponents of the Constitution who wrote that this "sweeping clause" would
in fact allow Congress to legislate in areas reaching well beyond the
subject matters assigned to it in earlier clauses of Section 8? Or did it,
at most, simply authorize Congress to pass legislation "incidental" to the
assigned powers, as suggested, quite likely for strategic reasons, by many
proponents of the Constitution, including Madison and Hamilton in The
Federalist, who were worried about gaining the votes necessary for
ratification?
As Washington's secretary of the Treasury, Hamilton reversed direction,
brilliantly defending a broad reading of the clause that gave Congress the
power to charter the Bank of the United States; his erstwhile colleague
Madison, now a member of the House of Representatives, responded that
Congress lacked such a power. Congress agreed with Hamilton, and Washington
signed legislation establishing the Bank. John Marshall, an avid
Hamiltonian, would in 1819 give the clause an expansive reading in
McCulloch v. Maryland, upholding the Second Bank of
the United States.)
The first American party system was significantly defined by such
issues of constitutional interpretation and, concomitantly, the extent of
national power. The Necessary and Proper Clause was only one constitutional
issue dividing the parties, and Lynch well tells the story of many debates
that shaped the nation (and with whose consequences in some cases we still
live). One central theme of his book is captured in the concluding
paragraph:
"Madison, diligent advocate of strict construction, has been called
Father of the Constitution. After constitutions are written, however,
they must be interpreted and made to work. It is Hamilton who deserves the
title of Father of Constitutional Law."
Opportunistic readings, and "strict constructions"
As noted earlier, Lynch is interested whether any of the founding
generation felt duties to remain faithful to the presumptive "original
intent" of those who framed the 1787 Constitution. His answer is,
basically, no. Everyone-Madison, Hamilton, James Wilson, Elbridge Gerry,
and many others--engaged in opportunistic argument, invoking "original
intent" when convenient, denouncing it (or simply changing the subject)
when not. Almost no one felt any strong duty to be consistent in making
constitutional argument. Lynch refers to the "extremities of constitutional
argumentation and political positioning that both sides would embrace in
pursuit of ambition, partisan triumph, and national and sectional interest"
Although this book concludes with the election of 1800 and the triumph of
the Jeffersonian view of ostensibly "strict construction" of national
powers, Lynch notes that Jefferson spectacularly violated all of his
strictures in welcoming the Louisiana Purchase. The felt imperatives of
American expansionism took easy precedence over any doubts about the
constitutional legitimacy of the purchase.
Lynch concludes his acknowledgments by thanking his wife, Irene, for her
insistence that he lay out the complex materials that are the subject of
his book in "understandable American usage." All of us are in Irene Lynch's
debt, for Negotiating the Constitution is indeed an extraordinarily
accessible book. Every scholar even remotely interested in American
constitutional development must read this book; every general reader
sharing similar interests will be able to enjoy and profit from it.
ABOUT THE Author: JOSEPH M. LYNCH is Professor of Law Emeritus at Seton
Hall University School of Law.
HISTORY BOOK CLUB MAY 1999
-------------------------------------------------
FROM THE FLYLEAF:
No concept sparks more controversy in Constitutional debate than
"Original Intent." Offering a Legal Historians's approach to the subject,
this book demonstrates that the framers deliberately obscured one of their
most important decisions.
Joseph Mr. Lynch argues that the Constitution was a product of political
struggles involving regional interests, economic concerns, and ideology.
The framers, he maintains settled on enigmatic wording of the Necessary and
Proper Clause and of the General Welfare provision in the Spending Clause
leaving the extent of federal power to be determined by the political
process. During ratification, however, attempts by dissident framers to
undo the compromise were repelled in were repelled in The Federalist:
charges of overly broad congressional powers were met with protestations
that in fact these powers were limited. This exchange set the stage for
later battles between Federalists and Republicans.
Examining debates in the first six Congresses, Lynch describes how early
lawmakers applied the Constitution to such issues as executive power and
privilege, the creation of the national bank, the deportation of aliens,
and the prohibition of seditious speech. He follows the disputes over
interpretation of this document--focusing on James Madison's changing
views--and the new government took shape and political parties were formed.
Lynch points out that the first six Congresses and president George
Washington disregarded the framers intentions when they were deemed
impractical to follow.
-------------------------------------------------------------------------------
:|Unfortunately,
:|in too many cases, the words either are ambiguous or lead to absurd results
:|if taken to extremes.
4. Constitutions are written in very broad terms. There are, of course,
exceptions to this, particularly with respect to the constitutions of local
governments. In the main, however, a common characteristic of
constitutional provisions is :'their broad language. How would you
interpret the following section?
Congress shall make no laws respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or of the right of the people to assemble, and to petition
the Government for a redress of grievances.
How many words in this provision do you not understand? What is an
"establishment?" If the school board requires a "moment of silence" at the
beginning 'of each day, is the school board establishing a religion? What
does "abridging" :mean? If a government official leaks secret documents to
the press, and the government tries to sue the press to prevent the
publication of the documents, has :the "freedom" of the press been
abridged? If the people have a right to "assemble," could the government
pass a law prohibiting all gatherings of three or pore people at any place
within one thousand yards of the White House gates? The questions arising
from the interpretation of constitutional law are endless; ; tens of
thousands of court opinions exist on questions such as these. The broader
the language, the more ambiguous it is, and therefore the greater the need
for interpretation.
Introduction to Paralegalism, Perspectives, Problems, and Skills, 4th
edition, William Statsky, West Publishing Co. St. Paul, Minn (1992) p 601
----------------------------------------------------------------------------------
:|In cases where the words of the Constitution alone are not sufficient, I do
:|regard original intent as very important. But like James Madison, it is the
:|intent of the States,
Whoa!!!!!!!!!!
We the People, not the states. The states didn't ratify the Constitution.
Now the states did ratify the BORs, but alas, there are no records of any
of the debates, votes, etc in any of those ramifications. We only know the
results, Article 1 & 2 were rejected Articles 3-12 were ratified.
Therefore, it is pretty much impossible to know for certain what any of the
various people who ratified the BORs understood with regards to meaning.
:|not the intent of the authors, that I view as holding
:|paramount importance if one wants to look beyond the words themselves in
:|establishing intent.
You like words, huh?
Explain these words to us:
********************************************
SEPTEMBER 13, 1789 (Amendments)
Your letter of the 8th Ulto. has lain long unanswered because I have been
absorbed about the Amendments to the Constitution. They have at length
passed the Senate, with difficulty, after being much mutilated and
enfeebled---
Source: Richard Henry Lee to Francis Lightfoot Lee, 13 September 1789,
Morristown National Historical Park, New Jersey.
______________________________________________________
SEPTEMBER 14, 1789 (Amendments)
Whether the present constitution will preserve its theoretical ballance,
for I consider it altogether as a political experiment, if it should, what
will be the effect, or if it should not, to what system it will verge, are
secrets that can only be unfolded by time: as to the amendments proposed by
Congress, they will not affect those questions or serve any other purposes
than to reconcile those who had no adequate idea of the essential defects
of the Constitution. . . .
Source: Elbridge Gerry to John Wendell, 14 September 1789, Fogg Autograph
Collection, Maine Historical Society.
_______________________________________________________
SEPTEMBER 14, 1789 (Amendments)
[I have) since waited to see the issue of the proposed amendts. to the
Constitution, that I might give you the most [exact] account of that
business. As they came from the H. of R. they were very far short of the
wishes of our Convention, but as they are returned by the Senate they are
certainly much weakened. You may be assured that nothing on my part was
left undone to prevent this, and every possible effort was used to give
success to all the Amendments proposed by our Country--We might as
well have attempted to move Mount Atlas upon our shoulders--In fact, the
idea of subsequent Amendments was delusion altogether, and so intended by
the greater part of those who arrogated to themselves the name of
Federalists. . .
.. . . The preamble to the Amendments is realy curious--A careless reader
would be apt to suppose that the amendments desired by the States had been
graciously granted. But when the thing done is compared with that desired,
nothing can be more unlike.
By comparing the Senate amendments with [those] from below by carefully
attending to the m[atter] the former will appear well calculated to
enfeeble [and] produce ambiguity--for instance--Rights res[erved] to the
States or the People--The people here is evidently designed fo[r the]
People of the United Slates, not of the Individual States [page torn] the
former is the Constitutional idea of the people--We the People &c. It was
affirmed the Rights reserved by the States bills of rights did not belong
to the States--I observed that then they belonged to the people of the
States, but that this mode of expressing was evidently calculated to give
the Residuum to the people of the U. Stares, which was the Constitutional
language, and to deny it to the people of the Indiv. State--At least that
it left room for cavil & false construction--They would not insert after
people thereof--altho it was moved.
Source: Richard Henry Lee to Patrick Henry, 14 September 1789, Patrick
Henry Papers, DLC. Words in brackets are taken from historian Charles
Campbell's pre-Civil War transcript in the Hugh Plait Grigsby Papers,
Virginia Historical Society.
_____________________________________________________
SEPTEMBER 15, 1789 (Amendments)
The Amendments too have been amended by the Senate, & many In our house,
Mr. Madison, in particular, thinks, that they have lost much of their
sedative Virtue by the alteration. A contest on this subject between the
two houses would be very disagreeable.
Source: Fisher Ames to Caleb Strong, 15 September 1789, Thompson Autograph
Collection, Hartford Seminary Foundation.
______________________________________________________
SEPTEMBER 27, 1789 (Amendments)
My third letter to you on the 14th. inst. will satisfy you how little is to
be expected from Congress that shall be any ways satisfactory on the
subject of Amendments.. . . The English language has been carefully culled
to find words feeble in their Nature or doubtful in their meaning!
Source: Richard Henry Lee to Patrick Henry, 27 September 1789,
Miscellaneous Manuscripts, DLC.
______________________________________________________
SEPTEMBER 29, 1789 (Amendments)
With respect to amendments matters have turned out exactly as I apprehended
from the extraordy doctrine of playing the after game: the lower house sent
up amendments which held out a safeguard to personal liberty in a great
many instances, but this disgusted the Senate, and though we made every
exertion to save them, they are so mutilated & gutted that in fact they are
good for nothing, & I believe as many others do, that they will do more
harm than benefit:
Source: William Grayson to Patrick Henry, 29 September 1789, Patrick Henry
Papers, DLC.
_______________________________________________________
OCTOBER 2, 1789 (Amendments)
You will find our Amendments to the Constitution calculated merely to
amuse, or rather to deceive.
Source: Thomas Tudor Tucker to St. George Tucker, 2 October 1789, Roberts
Autograph Collection, Haverford College, Haverford, Pennsylvania
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++
:|Keep in mind that the Constitution is a document
:|through which the States agreed with each other to create a new federal
:|government and to delegate certain of their powers to that government.
The Constitution was an illegal act which created a bloodless revolution.
The anti-rats (Anti-federal its) tried everything they could think of to
derail the ratification of it. When they couldn't accomplish that they
tried to derail the Amendments, that they had been calling for.
Man, learn some history.
:|Thus, it is what the States understood themselves and each other to be
:|agreeing to, not what the authors understood themselves to be proposing that
:|the States agree to, that is of paramount importance in establishing
:|original intent.
The states didn't ratify the constitution.
:|
:|> It is NOT based on your concept of "logic" (logic is inherently weak
:|> as means of deduction since it relies strongly on the premises, and it
:|> is the fundamental premises that are in dispute here).
:|
:|Granted, logic can only persuade those who are willing to or can be
:|persuaded to adopt a compatible set of underlying premises.
:|
:|> Madison, having lived in the times, is also more likely to have been
:|> aware how the words were understood in the states at the time of
:|> ratification, and this would have been reflected in his writings after
:|> that ratification. Madison thus knows his intent and has some claim
:|> as a contemporary witness to public attitude. That he was elected
:|> President suggests that his readings of public attitude were not too
:|> far wrong.
:|
:|Your point here definitely has relevance to whatever Madison may have
:|written regarding how his contemporaries viewed the First Amendment.
:|However, when Madison wrote expressing his own views, his doing so does not
:|imply anything regarding how many others of his era shared those views.
Six men are responsible for the final wording of the religious clauses of
the BORs.
Madison was one of those six men.
Madison is the only one of those six who ever took any kind of action based
on the Establishment clause.
He actively vetoed two acts of Congress and pocket vetoed another act of
Congress.
Congress tried to override his two active vetoes but were unable to do so.
His version of the meaning of the establishment clause held up, not theirs
Madison is the only one of those six who ever wrote anything with regards
to any possible meaning of the 3rd Article.
If any of those others had a different meaning or a different idea, they
didn't seem to think it was important to express those thoughts or ideas in
any forum that we have access to today.
**********************************************************************************
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