Re: Biblical literalism vs. Constitutional original intent - cougarguard.com — unofficial BYU Cougars / LDS sports, football, basketball forum and message board

SeattleUte · 01-30-2008, 07:57 PM

Somebody here (I'll protect him from embarrassment by not disclosing his name) likened the strict construction doctrine under the Constitution to Biblical literalism. The concepts of Biblical literalism and Constitutional original intent have nothing to do with one another and are in no way related. Biblical literalism is like believing in fairy tales. The ancient Greeks who believed in Zeus, Achilles, et al. are a perfect analogy.

The only point of the original intent doctrine when applied to the Constitution is to restrain judges' disenfranchisement of the majority. Far less importance is attributed to substance than procedure. Indeed, substance is probably wholly beside the point for most exponents of Constitutional original intent. For example (and this type of tension is not uncommon), an apostle of original intent my personally favor abortion rights, or gun control, but have a strong conviction that the right to choose should not be read into the Constitution or the right to bear arms should not be read out of it where such would do violence to the text, absent an explicit amendment decided through the democratic process.

A hallmark of our republican system of government, really the most truly original aspect of it, is the judiciary's role of protecting minority groups from abridgement of certain guaranteed liberties under the Bill or Rights from the tyranny of the majority. We saw this principle at work, for example, in Brown v. Board of Education and, indeed, Roe v. Wade. But obviously, much mischief can result if judges take an unduly liberal interpretation of Constitution in order to extract license to wield power like kings per their own whimsy or beliefs or interests, and usurp majority rule. However, it often does seem to me that certain "conservative" judges and justices may be guilty of invoking original intent doctrine as a pretext for imposing their own morality on minority groups such as consumers of pornography.

jay santos · 01-30-2008, 08:49 PM

When I made the comparison of fundamentalism in Bible and constitution, I meant in terms of inerrancy or absolute truth. If you're creative and open minded enough as an LDS to completely reject any fundamentalism when it comes to the Bible, it seems you shouldn't call to the constitution for authority on an issue--not for interpretation of law but in determining what SHOULD be right.

This may be a point lost on a lawyer. I know you guys don't give a rat's about what is right, only what can be proven legally.

woot · 01-30-2008, 08:51 PM

There are a couple interesting issues at play here that I think your post emphasizes quite well.

1. The constitution is not perfect, and we could create a better, more relevant one easily today. Obviously, the problem is that the content of the new one would be drastically different depending on which party the bitter partisan author belonged to (I'm past assuming that the bitter partisan president would select a moderate/objective person/committee to write it).

2. The founders were not gods/prophets. "Original intent" is wise to consider, but ultimately irrelevant if their intent does not match with the current zeitgeist. It's all too easy to assume that an old document contains some sort of wisdom unavailable today, and in some ways this is true. However, it is silly to simply defer to the old document, as if the last 230/1700 years of discourse shouldn't affect our government/morality.

These issues are not unknown to to scotus, and on the whole I think they do a pretty good job and that a new constitution is a bad idea, but there are many pundits who I would guess don't understand these issues at all.

Cali Coug · 01-30-2008, 08:51 PM

Quote:

Originally Posted by jay santos

When I made the comparison of fundamentalism in Bible and constitution, I meant in terms of inerrancy or absolute truth. If you're creative and open minded enough as an LDS to completely reject any fundamentalism when it comes to the Bible, it seems you shouldn't call to the constitution for authority on an issue--not for interpretation of law but in determining what SHOULD be right.

This may be a point lost on a lawyer. I know you guys don't give a rat's about what is right, only what can be proven legally.

Oh yeah? Prove it.

SeattleUte · 01-30-2008, 08:57 PM

Quote:

Originally Posted by jay santos

When I made the comparison of fundamentalism in Bible and constitution, I meant in terms of inerrancy or absolute truth. If you're creative and open minded enough as an LDS to completely reject any fundamentalism when it comes to the Bible, it seems you shouldn't call to the constitution for authority on an issue--not for interpretation of law but in determining what SHOULD be right.

This may be a point lost on a lawyer. I know you guys don't give a rat's about what is right, only what can be proven legally.

Again, strict construction in the Con law context has nothing to do with a claim if inerrancy. It's about upholding majority rule whatever the outcome except in very limited circumstances. It is completely non-judgmental about the content of the Constitution; it says, whatever the content, it must be strictly applied in invalidating laws determined by majority rule. Otherwise unelected judges serving for life, who can't be voted out of office or fired, will erode the power of the majority, i.e., democracy.

Detroitdad · 01-31-2008, 02:28 AM

Quote:

Originally Posted by SeattleUte

Again, strict construction in the Con law context has nothing to do with a claim if inerrancy. It's about upholding majority rule whatever the outcome except in very limited circumstances. It is completely non-judgmental about the content of the Constitution; it says, whatever the content, it must be strictly applied in invalidating laws determined by majority rule. Otherwise unelected judges serving for life, who can't be voted out of office or fired, will erode the power of the majority, i.e., democracy.

My kingdom for an originalist who practices what he or she preaches with regard to his or her opinions. It seems to me that the legal world is full of selective originalists.

UtahDan · 01-31-2008, 04:10 AM

Quote:

Originally Posted by Detroitdad

My kingdom for an originalist who practices what he or she preaches with regard to his or her opinions. It seems to me that the legal world is full of selective originalists.

That is because only law professors get to live in the ivory tower. The rest of us are advocates.

Archaea · 01-31-2008, 04:15 AM

Quote:

Originally Posted by UtahDan

That is because only law professors get to live in the ivory tower. The rest of us are advocates.

and some of us have opinions and minds that track the Framers so we are allowed to assert those opinions where there are gaps.

Brennan mandating a specific standard of living, in a minority opinion, was one of the most horrendous aspects of potential legislation one ever did hazard. It's why I hope never to see another Clinton in office.

Archaea · 01-31-2008, 04:16 AM

Quote:

Originally Posted by woot

There are a couple interesting issues at play here that I think your post emphasizes quite well.

1. The constitution is not perfect, and we could create a better, more relevant one easily today. Obviously, the problem is that the content of the new one would be drastically different depending on which party the bitter partisan author belonged to (I'm past assuming that the bitter partisan president would select a moderate/objective person/committee to write it).

2. The founders were not gods/prophets. "Original intent" is wise to consider, but ultimately irrelevant if their intent does not match with the current zeitgeist. It's all too easy to assume that an old document contains some sort of wisdom unavailable today, and in some ways this is true. However, it is silly to simply defer to the old document, as if the last 230/1700 years of discourse shouldn't affect our government/morality.

These issues are not unknown to to scotus, and on the whole I think they do a pretty good job and that a new constitution is a bad idea, but there are many pundits who I would guess don't understand these issues at all.

Woot, you're out of your league. Stand on the sidelines please.

woot · 01-31-2008, 04:34 AM

Quote:

Originally Posted by Archaea

Woot, you're out of your league. Stand on the sidelines please.

Go fuck yourself. Please.

01-30-2008, 07:57 PM	#1
SeattleUte fairlds.org Join Date: Jan 2006 Location: Seattle, WA Posts: 10,665	Re: Biblical literalism vs. Constitutional original intent Somebody here (I'll protect him from embarrassment by not disclosing his name) likened the strict construction doctrine under the Constitution to Biblical literalism. The concepts of Biblical literalism and Constitutional original intent have nothing to do with one another and are in no way related. Biblical literalism is like believing in fairy tales. The ancient Greeks who believed in Zeus, Achilles, et al. are a perfect analogy. The only point of the original intent doctrine when applied to the Constitution is to restrain judges' disenfranchisement of the majority. Far less importance is attributed to substance than procedure. Indeed, substance is probably wholly beside the point for most exponents of Constitutional original intent. For example (and this type of tension is not uncommon), an apostle of original intent my personally favor abortion rights, or gun control, but have a strong conviction that the right to choose should not be read into the Constitution or the right to bear arms should not be read out of it where such would do violence to the text, absent an explicit amendment decided through the democratic process. A hallmark of our republican system of government, really the most truly original aspect of it, is the judiciary's role of protecting minority groups from abridgement of certain guaranteed liberties under the Bill or Rights from the tyranny of the majority. We saw this principle at work, for example, in Brown v. Board of Education and, indeed, Roe v. Wade. But obviously, much mischief can result if judges take an unduly liberal interpretation of Constitution in order to extract license to wield power like kings per their own whimsy or beliefs or interests, and usurp majority rule. However, it often does seem to me that certain "conservative" judges and justices may be guilty of invoking original intent doctrine as a pretext for imposing their own morality on minority groups such as consumers of pornography. __________________ Interrupt all you like. We're involved in a complicated story here, and not everything is quite what it seems to be. —Paul Auster

01-30-2008, 08:49 PM	#2
jay santos Senior Member Join Date: Jan 2006 Posts: 6,177	When I made the comparison of fundamentalism in Bible and constitution, I meant in terms of inerrancy or absolute truth. If you're creative and open minded enough as an LDS to completely reject any fundamentalism when it comes to the Bible, it seems you shouldn't call to the constitution for authority on an issue--not for interpretation of law but in determining what SHOULD be right. This may be a point lost on a lawyer. I know you guys don't give a rat's about what is right, only what can be proven legally.

01-30-2008, 08:51 PM	#3
woot Senior Member Join Date: Oct 2007 Location: Denver Posts: 1,502	There are a couple interesting issues at play here that I think your post emphasizes quite well. 1. The constitution is not perfect, and we could create a better, more relevant one easily today. Obviously, the problem is that the content of the new one would be drastically different depending on which party the bitter partisan author belonged to (I'm past assuming that the bitter partisan president would select a moderate/objective person/committee to write it). 2. The founders were not gods/prophets. "Original intent" is wise to consider, but ultimately irrelevant if their intent does not match with the current zeitgeist. It's all too easy to assume that an old document contains some sort of wisdom unavailable today, and in some ways this is true. However, it is silly to simply defer to the old document, as if the last 230/1700 years of discourse shouldn't affect our government/morality. These issues are not unknown to to scotus, and on the whole I think they do a pretty good job and that a new constitution is a bad idea, but there are many pundits who I would guess don't understand these issues at all.