| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
09 Apr 2006 07:50:18 AM |
| Object: |
What is a principle of law |
WHAT IS A PRINCIPLE OF LAW?
A principle has the characteristics of a rule [of law], and in
addition, a principle:
1. has a more fundamental status in law than a rule
2. has a broader or more inclusive scope or reach than
a rule
3. may be used as a basis for creating rules
4. is sometimes used by a judge to select which one of
the two or more arguably applicable rules should be
applied in a particular case
In our system of law, some fundamental principles are explicitly
specified in the Constitution of the United States, including:
-- the principle of due process
-- the principle of equal protection of the law
-- the principles of freedom of speech, press and assembly
Other federal constitutional principles are derived from those which are
explicitly specified and then embodied in the case law of the U.S.
Supreme Court, including:
-- the principle that each person has a right of privacy,
derived from the first, fourth and other amendments
the principle that vague criminal statutes are a violation
of due process
(SOURCE OF INFORMATION: Learning Legal Reasoning, Briefing, Analysis and
Theory, By Professor John Delany. Ninth Printing John Delany Publications,
Bogota N.J. (1993) pp 8-9 )
-----------------------------------------------------------------------------
Bear in mind that the Federal Constitution only contains 4440 words.
Obviously, every detail is not spelled out. Principles and concepts are
embodied in it.
Words such as religious freedom, separation of church and state, separation
of powers, fair trial, freedom of religion are not contained in that
document, yet those principles are embodied in that document with the words
that are there.
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
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| User: "fred" |
|
| Title: Re: What is a principle of law |
09 Apr 2006 03:12:06 PM |
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wrote:
WHAT IS A PRINCIPLE OF LAW?
A principle has the characteristics of a rule [of law], and in
addition, a principle:
1. has a more fundamental status in law than a rule
2. has a broader or more inclusive scope or reach than
a rule
3. may be used as a basis for creating rules
4. is sometimes used by a judge to select which one of
the two or more arguably applicable rules should be
applied in a particular case
A principle of law is nothing more than legal sophistry that makes
dishonest, politically correct interpretations of the Constitution,
such as the so-called constitutional principal of c&s separation, sound
like bona-fide interpretations of the Constitution.
In our system of law, some fundamental principles are explicitly
specified in the Constitution of the United States, including:
-- the principle of due process
-- the principle of equal protection of the law
<snipped for brevity>
.
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| User: "Tim DeLaney" |
|
| Title: Re: What is a principle of law |
11 Apr 2006 07:27:59 AM |
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fred wrote:
buckeye-elo@nospam.net wrote:
WHAT IS A PRINCIPLE OF LAW?
A principle has the characteristics of a rule [of law], and in
addition, a principle:
1. has a more fundamental status in law than a rule
2. has a broader or more inclusive scope or reach than
a rule
3. may be used as a basis for creating rules
4. is sometimes used by a judge to select which one of
the two or more arguably applicable rules should be
applied in a particular case
A principle of law is nothing more than legal sophistry that makes
dishonest, politically correct interpretations of the Constitution,
such as the so-called constitutional principal of c&s separation, sound
like bona-fide interpretations of the Constitution.
I take it that you believe that church and state ought not to be
separated. Could you expand on that? Can you tell us what involvement
with religion you think government should be permitted to have? Is
there church involvement that government _ought_ to have?
Which of the following would you approve of:
Starting every public school session with a prayer.
Subsidizing certain religious schools
Subsidizing all religious schools
Requiring all citizens to attend church services at least annually
Taxing all non-Christian religions
Posting the Lord's prayer on courthouse walls
Increasing the tax burden of atheists
The death penalty for converting to Islam
Prohibiting (with obvious exceptions) work on the sabbath
Requiring that every person say grace before meals
Outlawing Satanism and other blasphemous religions
Excluding non-believers from certain public posts
In other words, just how far would you let government become involved
with religion? How would you prevent government from overstepping its
authority?
Tim
In our system of law, some fundamental principles are explicitly
specified in the Constitution of the United States, including:
-- the principle of due process
-- the principle of equal protection of the law
<snipped for brevity>
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| User: "Info Junkie" |
|
| Title: Re: What is a principle of law |
09 Apr 2006 08:44:39 AM |
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On Sun, 09 Apr 2006 08:50:18 -0400, wrote:
WHAT IS A PRINCIPLE OF LAW?
A principle has the characteristics of a rule [of law], and in
addition, a principle:
1. has a more fundamental status in law than a rule
2. has a broader or more inclusive scope or reach than
a rule
3. may be used as a basis for creating rules
4. is sometimes used by a judge to select which one of
the two or more arguably applicable rules should be
applied in a particular case
In our system of law, some fundamental principles are explicitly
specified in the Constitution of the United States, including:
-- the principle of due process
-- the principle of equal protection of the law
-- the principles of freedom of speech, press and assembly
Other federal constitutional principles are derived from those which are
explicitly specified and then embodied in the case law of the U.S.
Supreme Court, including:
-- the principle that each person has a right of privacy,
derived from the first, fourth and other amendments
the principle that vague criminal statutes are a violation
of due process
(SOURCE OF INFORMATION: Learning Legal Reasoning, Briefing, Analysis and
Theory, By Professor John Delany. Ninth Printing John Delany Publications,
Bogota N.J. (1993) pp 8-9 )
PRINCIPLES
By this term is understood truths or propositions so clear that they cannot be
proved nor contradicted, unless by propositions which are still clearer. They
are of two kinds, one when the principle is universal, and these are kuown as
axioms or maxims; as, no one can transmit rights which he has not; the accessory
follows the principal, &c. The other class are simply called first principles.
These principles have known marks by which they may always be recognized. These
are, 1. That they are so clear that they cannot be proved by anterior and more
manifest truths. 2, That they are almost universally received. 3. That they are
so strongly impressed on our minds that we conform ourselves to them, whatever
may be our avowed opinions.
2. First principles have their source in the sentiment of our own existence, and
that which is in the nature of things. A principle of law is a rule or axiom
which is founded in the nature of the subject, and it exists before it is
expressed in the form of a rule. Domat, Lois Civiles, liv. prel. t. 1, s. 2
Toull. tit. prel. n. 17. The right to defend ones self, continues as long as an
unjust attack, was a principle before it was ever decides by a court, so that a
court does Dot (Not) establish but recognize principles of law.
Source: Bouviers Law Dictionary 1856 Edition
http://www.lawguru.com/dictionary/term.php?id=7265&searchtext=PRINCIPLES
http://www.constitution.org/bouv/bouvierp.txt
-----------------------------------------------------------------------------
Bear in mind that the Federal Constitution only contains 4440 words.
Obviously, every detail is not spelled out. Principles and concepts are
embodied in it.
Words such as religious freedom, separation of church and state, separation
of powers, fair trial, freedom of religion are not contained in that
document, yet those principles are embodied in that document with the words
that are there.
"Perhaps the most basic of all the rules of constitutional construction
(since it is the rule which all other rules may be said to be designed to
implement) is the principle that a constitution is to be given the effect
and meaning contemplated by its framers and by the people who adopted
it..." Vol 16 American Jurisprudence (constitutional law) Sec. 91:
As a guide in expounding and applying the provisions of the Constitution, the
debates and incidental decisions of the Convention can have no authoritative
character&[T]he legitimate meanings of the Instrument must be derived from the
text itself; or if a key is to be sought elsewhere, it must be&in the sense
attached to it by the people in their respective State Conventions, where it
received all the authority which it possesses.
Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228)
Another error has been in ascribing to the intention of the Convention which
formed the Constitution an undue ascendancy in expounding it. Apart from the
difficulty of verifying that intention, it is clear, that if the meaning of the
Constitution is to be sought out of itself, it is not in the proceedings of the
body that proposed it, but in those of the State Conventions, which gave it all
the validity and authority which it possesses.
Letter to N.P. Trist, December, 1831 (Madison, 1865, IV, page 211)
"...every person must be his own watchman for truth..." -Justice Jackson
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| User: "Jim07D6" |
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| Title: Re: What is a principle of law |
09 Apr 2006 05:46:36 PM |
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(Info Junkie) said:
<....>
"Perhaps the most basic of all the rules of constitutional construction
(since it is the rule which all other rules may be said to be designed to
implement) is the principle that a constitution is to be given the effect
and meaning contemplated by its framers and by the people who adopted
it..."
And if the framers set out rules in the constitution for its later
interpretation and amendment, that is what they contemplated.
--- Jim07D6
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| User: "Info Junkie" |
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| Title: Re: What is a principle of law |
13 Apr 2006 04:01:38 PM |
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On Sun, 09 Apr 2006 22:46:36 GMT, Jim07D6 <Jim07D6@nospam.net> wrote:
bondrock@ifx.net (Info Junkie) said:
<....>
"Perhaps the most basic of all the rules of constitutional construction
(since it is the rule which all other rules may be said to be designed to
implement) is the principle that a constitution is to be given the effect
and meaning contemplated by its framers and by the people who adopted
it..."
And if the framers set out rules in the constitution for its later
interpretation and amendment, that is what they contemplated.
--- Jim07D6
Agreed. Such "rules in the constitution for its later interpretation and
amendment" are spelled out in Article V of the US Constitution:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One thousand
eight hundred and eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate."
http://www.yale.edu/lawweb/avalon/art5.htm
"...every person must be his own watchman for truth..." -Justice Jackson
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| User: "" |
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| Title: Re: What is a principle of law |
11 Apr 2006 06:50:09 AM |
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(Info Junkie) wrote:
:|On Sun, 09 Apr 2006 08:50:18 -0400, wrote:
:|
:|>WHAT IS A PRINCIPLE OF LAW?
:|> A principle has the characteristics of a rule [of law], and in
:|>addition, a principle:
:|>
:|> 1. has a more fundamental status in law than a rule
:|>
:|> 2. has a broader or more inclusive scope or reach than
:|> a rule
:|>
:|> 3. may be used as a basis for creating rules
:|>
:|> 4. is sometimes used by a judge to select which one of
:|> the two or more arguably applicable rules should be
:|> applied in a particular case
:|>
:|> In our system of law, some fundamental principles are explicitly
:|>specified in the Constitution of the United States, including:
:|>
:|> -- the principle of due process
:|>
:|> -- the principle of equal protection of the law
:|>
:|> -- the principles of freedom of speech, press and assembly
:|>
:|>Other federal constitutional principles are derived from those which are
:|>explicitly specified and then embodied in the case law of the U.S.
:|>Supreme Court, including:
:|>
:|> -- the principle that each person has a right of privacy,
:|> derived from the first, fourth and other amendments
:|>
:|> the principle that vague criminal statutes are a violation
:|> of due process
:|>(SOURCE OF INFORMATION: Learning Legal Reasoning, Briefing, Analysis and
:|>Theory, By Professor John Delany. Ninth Printing John Delany Publications,
:|>Bogota N.J. (1993) pp 8-9 )
:|
:|PRINCIPLES
:|By this term is understood truths or propositions so clear that they cannot be
:|proved nor contradicted, unless by propositions which are still clearer. They
:|are of two kinds, one when the principle is universal, and these are kuown as
:|axioms or maxims; as, no one can transmit rights which he has not; the accessory
:|follows the principal, &c. The other class are simply called first principles.
:|These principles have known marks by which they may always be recognized. These
:|are, 1. That they are so clear that they cannot be proved by anterior and more
:|manifest truths. 2, That they are almost universally received. 3. That they are
:|so strongly impressed on our minds that we conform ourselves to them, whatever
:|may be our avowed opinions.
:|
:|2. First principles have their source in the sentiment of our own existence, and
:|that which is in the nature of things. A principle of law is a rule or axiom
:|which is founded in the nature of the subject, and it exists before it is
:|expressed in the form of a rule. Domat, Lois Civiles, liv. prel. t. 1, s. 2
:|Toull. tit. prel. n. 17. The right to defend ones self, continues as long as an
:|unjust attack, was a principle before it was ever decides by a court, so that a
:|court does Dot (Not) establish but recognize principles of law.
:|Source: Bouviers Law Dictionary 1856 Edition
:|http://www.lawguru.com/dictionary/term.php?id=7265&searchtext=PRINCIPLES
:|http://www.constitution.org/bouv/bouvierp.txt
:|
Gee you really seem to have a need to read my posts don't you? (grin)
NOW FOR ANOTHER VIEW:
(1) We have the definition given by:
(SOURCE OF INFORMATION: Learning Legal Reasoning, Briefing, Analysis and
heory, By Professor John Delany. Ninth Printing John Delany Publications,
Bogota N.J. (1993) pp 8-9 )
(2) Principle, n. The source of authority or right.
(Black's Law Dictionary p 827
(3) Principle. A fundamental truth or doctrine, as of law; a comprehensive
rule or doctrine which furnishes a basis or origin for others; a settled
rule of action, procedure, or legal determination. A truth or proposition
so clear that it cannot be proved or contradicted unless by a proposition
which is still clearer. That which constitutes the essence of a body or its
constituent parts. That which pertains to the theoretical part of a
science.
(Black's Legal Dictionary, Abridged Sixth Edition, Centennial Edition
(1891-1991) West Publishing Company (1991) p. 828
Is there really any differecne between that which Professor Delany provided
and the junkie felt he had to provide?
:|>-----------------------------------------------------------------------------
:|>Bear in mind that the Federal Constitution only contains 4440 words.
:|>Obviously, every detail is not spelled out. Principles and concepts are
:|>embodied in it.
:|>
:|>Words such as religious freedom, separation of church and state, separation
:|>of powers, fair trial, freedom of religion are not contained in that
:|>document, yet those principles are embodied in that document with the words
:|>that are there.
:|
:|"Perhaps the most basic of all the rules of constitutional construction
:|(since it is the rule which all other rules may be said to be designed to
:|implement) is the principle that a constitution is to be given the effect
:|and meaning contemplated by its framers and by the people who adopted
:|it..." Vol 16 American Jurisprudence (constitutional law) Sec. 91:
:|
:|As a guide in expounding and applying the provisions of the Constitution, the
:|debates and incidental decisions of the Convention can have no authoritative
:|character&[T]he legitimate meanings of the Instrument must be derived from the
:|text itself; or if a key is to be sought elsewhere, it must be&in the sense
:|attached to it by the people in their respective State Conventions, where it
:|received all the authority which it possesses.
:|Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228)
:|
:|Another error has been in ascribing to the intention of the Convention which
:|formed the Constitution an undue ascendancy in expounding it. Apart from the
:|difficulty of verifying that intention, it is clear, that if the meaning of the
:|Constitution is to be sought out of itself, it is not in the proceedings of the
:|body that proposed it, but in those of the State Conventions, which gave it all
:|the validity and authority which it possesses.
:|Letter to N.P. Trist, December, 1831 (Madison, 1865, IV, page 211)
:|
NOW FOR ANOTHER VIEW:
***********************************************************************************
The Constitution was being framed for untold millions as yet unborn, for
diversity as yet unimagined, for those to come, not so much for those were
there and would in a matter of 50 years or less be gone forever.
========================================
That Americans during the revolutionary period did not always carry their
principles into practice either in Church-State or other matters did not
negate those principles. Except in a few instances, such as financial
support of churches, they passed to subsequent generations the task of
working out the consequences of the principle that the state had no
competence in religious matters in a society wherein customs, mores, laws,
and religion intertwined and wherein -the majority equated religion with
Protestantism. However, the federal Bill of Rights prompted several states
to begin to reconcile practice with principle Between 1 789 and 1792,
Delaware, South Carolina, and Georgia abandoned religious tests for
officeholding, and Pennsylvania modified its test to exclude only atheists.
The meaning of free exercise of religion and establishment of
religion in 1789 must be examined within the historical matrix that
produced these concepts. just as Puritan demands for religious liberty take
on a different hue when seen against the pattern of Puritan belief, and
just as the sweeping proclamations of anti-subscriptionists of the
seventeenth century were not at all what they seemed on their face, so the
meaning of the First Amendment must arise out of its historical context
rather than from a literalist reading. It meant at least this: that each
citizen had a right to the free exercise of his or her religion as long as
it did not "break out into overt acts against peace and order." Further,
the people of almost every state that ratified the First Amendment believed
that religion should be maintained and supported voluntarily. They saw
government attempts to organize and regulate such support as a usurpation
of power, as a violation of liberty of conscience and free exercise of
religion, and as falling within the scope of what they termed an
establishment of religion.
(SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986) pp 202 - 222)
===========================================================
As Richard Henry Lee of Virginia noted, they {the amendments) were
statements "for ages and nations yet unborn"
=====================================================
JULY 30, 1788
NORTH CAROLINA RATIFYING CONVENTION
[This quote shows that while was expressing his concerns, other on that
same day were expressing thoughts quite different from his]
MR. LANCASTER. As to a religious test, had the article which excludes it
provided none but what had been in the states heretofore, I would not have
objected to it. It would secure religion. Religious liberty ought to be
provided for. I acquiesce with the Gentleman, who spoke, on this point, my
sentiments better than I could have done myself. For my part, in reviewing
the qualifications necessary for a president, I did not suppose that the
pope could occupy the President's chair.**** But let us remember that we
form a government for millions not yet in existence.***** I have not the
art of divination. In the case of four or five hundred years, I do not know
how it will work. This is most certain, that Papists may occupy that chair,
and Mahometans may take it. I see nothing against it. There is a
disqualification, I believe, in every state in the Union - it ought to be
so in this system.
(SOURCE OF INFORMATION: Wed. July 30, 1788. North Carolina State
Constitutional Ratifying Convention debates--THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS
RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, VOL IV, by
Jonathan Elliot J. B. Lippincott Company 1888. Pages 215)
------------------------------------------------------------------------------------------------------------------
[The above man was farsighted enough to understand that as time passed
there would be other religions present in this nation and that at some
future time a Non-Christian may very well be president of this nation.]
I agree, if it were only meant to last a short period of time. why have it?
What's the point? If it were not meant and expected to last why bother
even doing it? Huh?
Do you honestly think for one second that the bulk of the men who framed
the Constitution and those who framed the amendments would not agree with
Richard Henry Lee when he noted that these were statements "for ages and
nations yet unborn." That a constitution made for the ages should not be
worded to allow that to happen?
You do understand that:
The Constitution is a document that contains approx 4440 words.
Few of the clauses those words form are clear, in meaning, intent, purpose
or application.
That is deliberate.
-------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------
Just a few instances to back up what I said:
Original Intent? Part IV
http://members.tripod.com/~candst/origp4.htm
SEPTEMBER 14, 1789 (Amendments)
[excerpt]
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--
SOURCE OF INFORMATION: 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.
CREATING THE BILL OF RIGHTS. The Documentary Record from the First Federal
Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds.
The John Hopkins University Press, Baltimore & London, (1991), pp 295-96)
------------------------------------------------------------------------------------------
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 17, 1789 (Amendments)
As to amendments to the Constitution Madison says he had rather have none
than those agreed to by the Senate.
Source: Paine Wingate to John Langdon, 17 September 1789, Dreer Collection,
Historical Society of Penna. Philadelphia.
----------------------------------------
SEPTEMBER 27, 1789 (Amendments)
[excerpt]
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. Your observation is perfectly just, that right
without power to protect it, Is of little avail. Yet small as it is, how
wonderfully scrupulous have they been in stating Rights! The English
language has been carefully culled to find words feeble in their Nature or
doubtful in their meaning! .
(SOURCE OF INFORMATION: Richard Henry Lee to Patrick Henry, 27 September
1789, Miscellaneous Manuscripts, DLC. CREATING THE BILL OF RIGHTS. The
Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth
R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University
Press, Baltimore & London, (1991), pp 296-97)
-----------------------------------------------------------------------------------------------------------------
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
=======================================================
The central flaw of strict constructionism is that words are inherently
indeterminate-they can often be given more than one plausible meaning. If
simply reading the Constitution the "right" way were all the justices of
the Supreme Court had to do, the only qualification for the job would be
literacy, and the only tool a dictionary. But the meanings of the
Constitution's words are especially difficult to pin down. Many of its most
precise commands are relatively trivial-such as the requirement that the
President be thirty-five years old-while nearly all of its most important
phrases are deliberate models of ambiguity. Just what does the Fourth
Amendment prohibit as an "unreasonable search"? What exactly is the
"speech" whose freedom the government may 'not "abridge"? What is it that
we gain by being guaranteed the "equal protection of the laws"? And what,
in heaven's name, is "due process"? Such vague phrases not only invite but
compel the Supreme Court to put meaning into the Constitution, . . .
(SOURCE OF INFORMATION: God Save this Honorable Court, How the Choice of
Supreme Court justices Shapes Our History, Laurenace H. Tribe, Random
House, N.Y. (1985) pp 43-44)
-------------------------------------------------------------------------
Another school of constitutional interpretation takes as its lodestar the
intent of the authors of the Constitution. The task of the Supreme Court,
when confronted by ambiguous or open-ended language, is simple to divine
what the Framers and the authors of the amendments had in mind. This method
employs historical research in addition to textual analysis.
(SOURCE OF INFORMATION: God Save this Honorable Court, How the Choice of
Supreme Court justices Shapes Our History, Laurenace H. Tribe, Random
House, N.Y. (1985) p 45)
----------------------------------------------------------------------------------------
.. The Framers of the Constitution intended their work to govern a growing
republic, so they drew up only a skeletal framework for American law, an
anatomical rather than a physiological structure, Justice Frankfurter
called it. Besides, since they were not omniscient, they unintentionally
left gaps and uncertainties. Where the document was general, obscure, or
silent, the Court has spoken up. Not everything, of course, was unsettled.
But in the crucial areas, there was much play. Neither the text of the
Constitution nor the debates of the Framers and ratifiers, for example,
clearly defined Congress' power "to regulate commerce" or "to make all
laws" which shall be "necessary and proper" for the execution of the
enumerated powers. As the nation grimly discovered, congressional power to
"make all needful rules and regulations" respecting territories was
exceedingly obscure. So was Article 1, Section 10, which prohibited the
states from "impairing the obligation of contracts," and also the Tenth
Amendment, which reserved to them those powers not delegated to the United
States. Such vital matters as corporations, railroads, banks, and political
parties were not even mentioned, though they had to be incorporated into
the constitutional system. Obligated to make the Constitution a document to
live by and faced with the vagaries and silences of the text, the judges
fell back on, in Holmes's famous words, "the felt necessities of the time,
the prevalent moral and political theories, intuitions of public policy."
The Court can make its mark on policy in less exciting areas of litigation
than constitutional construction. The interpretation of federal statutes,
for example, has been a vital and constantly growing part of the Court's
work. Congressional legislation is complex and frequently ambiguous; the
Court joins in the legislative process by performing the necessary task of
filling in the gaps. . . . Common law questions also consumed a large
portion of judicial energy in the early years and continued to do so until
the Court gained control over the cases it heard. There was, to be sure, no
federal common law per se. But all the American states (except Louisiana,
whose tradition was French) had the common law of England as a legal
foundation, and its principles, method, and spirit permeated the whole
structure of national law. The judges encountered common law questions at
every turn, and the problem of selecting principles from the English
inheritance that fit American circumstances provided an opportunity for
shaping and forming American jurisprudence. For some, like Justice Joseph
Story, it was a creative enterprise.
It should not, of course, be imagined that the business of interpreting
federal law is open-ended, that the judges are unassisted or free to follow
their whims. Congressional statutes frequently allow little interpretive
leeway, and when the Constitution speaks clearly the Court must follow. And
even when statutes are vague and the Constitution ambiguous, judicial
improvisation is restrained by judicial method. . .
(SOURCE OF INFORMATION: The Supreme Court under Marshall and Taney, The
American Histroy Series, R. Kent Newmyer. Harlan Davidson, Inc Arlington
Heights, Ill.(1968) pp 11-12)
§15:41 MODERN CONSTITUTIONAL LAW
Neither the Supreme Court nor legal scholars should be very dogmatic in
asserting the intent of the Framers on any aspect of constitutional law.
For one reason, the ratifying conventions are reported in such meagerness
as to throw very little light on the intentions of these persons who were
primarily responsible for the adoption of the provisions. A long study into
the intention of the persons responsible for the First Amendment should
encourage caution and humility in asserting what they meant in anything
other than the broadest perspectives.(13) Again, after monumental research
into the intent of those responsible for the Fourteenth Amendment, as
requested by the Supreme Court, the court could but observe: "Although
these sources cast some light, it is not enough to resolve the problem with
which we are faced.
At best, they are inconclusive . . . ."(14) So, indeed, will be most
attempts to psychoanalyze "the Framers." The Constitution will always
operate on many matters on which the Founding Fathers could have had no
intent.
(13) Antieau, Downey and Roberts, Freedom from Federal Establishment
(Chicago, 1965).
(14) Brown v Board of Education United States (1925) 276 US 394,
(1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR2d 1180, SUPP op
349 US 294, 99 L Ed 1083, 75 S Ct 753. MODERN CONSTITUTIONAL LAW, The
States and the Federal Government, Volume II, by Chester J. Antieau,
Lawyers Cooperative Publishing, Rochester, New York (1969) pp 716
======================================================
G. SOURCES FOR CONSTITUTIONAL ADJUDICATION:
Precedents
Intent of the framers of the Constitution.
The common law and the lessons of history
Interpretations given by nonjudicial agencies
Interoretations of state and foreign constitutions
Natural law and natrual rights doctrines
The shared eithical values of a culture
The broad philosophies of Supreme Court Justices
Studies in economics, sociology, and other disciplines
Concern for the impact of the decision and the rule upon society
Constitutional language and its arrangement
SOURCE: Modern Constitutional Law, The States and the Federal Government,
Vol II, Chester J. Antieau, Lawyers Co-op Publishing (1969) pp 706-747
===========================================================================
RELIGION
An Overview
Madison's original proposal for a bill of rights provision concerning
religion read: ''The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in any
manner, or on any pretence, infringed.'' The language was altered
in the House to read: ''Congress shall make no law establishing religion,
or to prevent the free exercise thereof, or to infringe the rights of
conscience.'' In the Senate, the section adopted read: ''Congress shall
make no law establishing articles of faith, or a mode of worship, or
prohibiting the free exercise of religion, . . .'' It was in the conference
committee of the two bodies, chaired by Madison, that the present language
was written with its some what more indefinite ''respecting '' phraseology.
Debate in Congress lends little assistance in interpreting the religion
clauses; Madison's position, as well as that of Jefferson who influenced
him, is fairly clear, but the intent, insofar as there was one, of the
others in Congress who voted for the language and those in the States who
voted to ratify is subject to speculation.
http://caselaw.findlaw.com/data/constitution/amendment01/01.html
=============================================================
From: buckeye-ELO - view profile
Date: Fri, Dec 5 2003 2:45 pm
Email: buckeye-...@nospam.net
Groups: alt.atheism, alt.politics.usa.constitution,
alt.education, alt.religion.christian, alt.society.liberalism,
misc.education, alt.politics.usa.republican
ambrosesea...@yahoo.com (ambrose searle) wrote:
:|> "ambrose searle" aka richard gardiner <ambrosesea...@yahoo.com> wrote
:|> > 1. I cited from the founders, viz., Hamilton's Federalist #28
:|>
:|"JTEM" <jay...@yahoo.com> wrote in message
:|> You're misrepresenting the Federalist Papers. They were letters
:|> to the editor, an early form of astroturfing, a promotional gimic.
:|Are you really THAT uninformed??
:|
:|The Federalist Papers are FREQUENTLY cited in the majority opinions of
:|the Supreme Court as evidence of original intent.
:|
:|Go look.
Eureka!!!!!!
Gardiner aka Searle is having visions of his M.O. dancing in his head.
Has he managed to select a hot button that will attract so he can fully
employ his M.O.?
(grin)
(1) Not everything said in a court opinion means a damn thing.
Not everything cited in a court opinion has any real bearing on anything.
The only real item that matters in a court opinion is the HOLDING.
Now can you produce any court ruling that states that the Federalists
Papers are legal authority for determining original intent?
Court opinions contain facts, a rule or rules of law, the issues or legal
question or questions being addressed, a rationale of sorts dicta of
varying kinds of which only one kind has any questionable value and that
value is very questionable.
Court opinions have been known to contain errors or mistakes with regards
to history, etc. Court opinions are frequently written by law clerks and
their historical qualifications are unknown by most people.
(2) The Federalist Papers, regardless of what fame or importance they have
been given after the fact was, in fact propaganda, meant to sell
ratification to the people of N.Y. To offset the so-called Anti-Federalist
writings/papers.
(3) Many of the very things that were written in the Federalist Papers were
ignored by founders and others alike once they actually sat down and began
to make a government work.
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.
=========================================================
(4) Madison and Hamilton, who co-operated in the writing of the Federalist
Papers seldom saw eye to eye on anything Constitutional after that.
Strange Original Intent wouldn't you say? No you wouldn't but most people
would
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
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|
| User: "Info Junkie" |
|
| Title: Re: What is a principle of law |
13 Apr 2006 04:07:30 PM |
|
|
On Tue, 11 Apr 2006 07:50:09 -0400, wrote:
bondrock@ifx.net (Info Junkie) wrote:
:|On Sun, 09 Apr 2006 08:50:18 -0400, wrote:
:|
:|>WHAT IS A PRINCIPLE OF LAW?
:|> A principle has the characteristics of a rule [of law], and in
:|>addition, a principle:
:|>
:|> 1. has a more fundamental status in law than a rule
:|>
:|> 2. has a broader or more inclusive scope or reach than
:|> a rule
:|>
:|> 3. may be used as a basis for creating rules
:|>
:|> 4. is sometimes used by a judge to select which one of
:|> the two or more arguably applicable rules should be
:|> applied in a particular case
:|>
:|> In our system of law, some fundamental principles are explicitly
:|>specified in the Constitution of the United States, including:
:|>
:|> -- the principle of due process
:|>
:|> -- the principle of equal protection of the law
:|>
:|> -- the principles of freedom of speech, press and assembly
:|>
:|>Other federal constitutional principles are derived from those which are
:|>explicitly specified and then embodied in the case law of the U.S.
:|>Supreme Court, including:
:|>
:|> -- the principle that each person has a right of privacy,
:|> derived from the first, fourth and other amendments
:|>
:|> the principle that vague criminal statutes are a violation
:|> of due process
:|>(SOURCE OF INFORMATION: Learning Legal Reasoning, Briefing, Analysis and
:|>Theory, By Professor John Delany. Ninth Printing John Delany Publications,
:|>Bogota N.J. (1993) pp 8-9 )
:|
:|PRINCIPLES
:|By this term is understood truths or propositions so clear that they cannot be
:|proved nor contradicted, unless by propositions which are still clearer. They
:|are of two kinds, one when the principle is universal, and these are kuown as
:|axioms or maxims; as, no one can transmit rights which he has not; the accessory
:|follows the principal, &c. The other class are simply called first principles.
:|These principles have known marks by which they may always be recognized. These
:|are, 1. That they are so clear that they cannot be proved by anterior and more
:|manifest truths. 2, That they are almost universally received. 3. That they are
:|so strongly impressed on our minds that we conform ourselves to them, whatever
:|may be our avowed opinions.
:|
:|2. First principles have their source in the sentiment of our own existence, and
:|that which is in the nature of things. A principle of law is a rule or axiom
:|which is founded in the nature of the subject, and it exists before it is
:|expressed in the form of a rule. Domat, Lois Civiles, liv. prel. t. 1, s. 2
:|Toull. tit. prel. n. 17. The right to defend ones self, continues as long as an
:|unjust attack, was a principle before it was ever decides by a court, so that a
:|court does Dot (Not) establish but recognize principles of law.
:|Source: Bouviers Law Dictionary 1856 Edition
:|http://www.lawguru.com/dictionary/term.php?id=7265&searchtext=PRINCIPLES
:|http://www.constitution.org/bouv/bouvierp.txt
:|
Gee you really seem to have a need to read my posts don't you? (grin)
I've no "need" at all...rather, I posted, as you noted in your response, "NOW
FOR ANOTHER VIEW". Nothing more no less. Seems you have a problem with that.
It appears your the one with a "need" to try and bolster support for a flagging
website of which you're an organizer Mr jalison (alias "buckeye").
"...every person must be his own watchman for truth..." -Justice Jackson
.
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|
|
| User: "" |
|
| Title: Re: What is a principle of law |
09 Apr 2006 05:39:16 PM |
|
|
On Sun, 09 Apr 2006 13:44:39 GMT,
(Info Junkie) wrote:
PRINCIPLES
By this term is understood truths or propositions so clear that they cannot be
proved nor contradicted, unless by propositions which are still clearer. T
So, let's get this straight
You claim "principles" are so clear to
conservatives----yet LYING about selling arms to Iran
was perfectly okay----and then you unleashed $130
Million to investigate a fucking "fib" about a
non-related government matter a popular sitting
president engaged (consensually) in.
2. First principles have their source in the sentiment of our own existence, and
that which is in the nature of things.
So when conservatives lynched, beat, robbed,
disfranchised blacks, their "inner sentiment" was the
most important moral "nature of things" that justified
the acts?
.
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| User: "ZerkonX" |
|
| Title: Re: What is a principle of law |
09 Apr 2006 09:46:21 AM |
|
|
On Sun, 09 Apr 2006 08:50:18 -0400, buckeye-elo wrote:
In our system of law, some fundamental principles are explicitly
specified in the Constitution of the United States, including:
Would you include 'government only by the consent of the governed' - 'We
the people.. ordain and establish..' or is this implicit?
.
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