SwiftVets.com

[sdpatriot]

i have been seeing the phrase "interpreting the law" a few times
now in a couple threads and wanted to add my 2 cents.
i'm just going by memory but will take the time if asked to
be more specific as to dates and names later.

there was never a precedent to "interpret" our laws and constituion
pre 1900. it was the precedent to find the ORIGINAL INTENT
of the writers. it took some work, but law students were
actually taught how to do this before the 20th century in the Law
Schools in our country. Original Intent means to understand the
langauge of the 17th century, and the beliefs of the writers of the constitution through studying their papers both personal and
public, and even their education.
that is why pre 1900 certain laws were found to be unconstitutional.
for example a federal income tax.

Judges and Justices in the last 100 years now look to themselves and
their OWN beliefs when deciding precedent instead of the Authors
of the Constitution and Bill of rights ORIGINAL INTENT when they
penned it.
that is why our Country has been going to hell in a hand basket.

there is a good book out there on this very subject called Original
Intent by David Barton. if you want to get really pissed at the way
our Constitution has been shredded and spat upon by self-serving,
self-worshipping, liberal judges and justices, read that book.
the book can be purchased here : http://www.wallbuilders.com/
and at artisian publishing.

regards,
sdpatriot
_________________
"Guard against the impostures of pretended patriotism."
George Washington, Farewell Address, September 19, 1796

[Marine4life]

Good post and very true. This is sort of what I have been saying all along. Judges use the position that they are trusted to fill and interpret to their personal agenda. There is only one legal reason to burn the flag within the confines of this country, when it has touched the ground or unserviceable. Yet the liberal Judges deem it is OK under the first ammendment. If George Washington were alive today I presume there would be some major Butt whoopin going on. But if one would read each with the litteral intent in mind they would see clearly what they mean without all this interpretation. Letter of the law has been circumvented in this country for years and it's time that we took it back. Semper Fi.
_________________
Helicopter Marine Attack Squadron 169 which is now HMLA-169. They added Huey's to compliment the Cobra effectiveness. When I served we just had Snakes.

[nakona]

Actually, the courts ARE supposed to interpret the law, and the SC is supposed to interpret the constitution.

Where people get hung up is the MEANING of the word "interpret"


The courst FIRST should look at the black letter law, and then at the case law. (Stare Decisis)

In a case where there is no precedent, it is there job to figure out what the people who wrote the law would have said if it were possible to ask them.

An excellent example is Intellectual Property Law, as it relates to the internet. Any law written before the mid 90's would not have taken it into account, so the courts have the difficult job of deciding how existing law applies to new realities.

Which is exactly how the founders intended it should work.
_________________
13F20P

[Marine4life]

You are right they do interpret the law, but only when interpretation is necessary. Our Judges now interpret every law even when the letter of the law is clear as a bell. They alway's add a twist to it, then the next Judge add's another twist til it is so distorted that it is so misinterpreted that it could mean anything. Like when Clinton was in office, how many way's did they interpret sex!!!! Common sense has to come into play somewhere. Now that sex definition is so screwed up it makes it very hard for DA's to prosecute sex offenders. Since Oral Copulation is not a sex act, ( according to the liberals, and some Judges ) what do you think the convicts have done who are in Prison for Forced Oral Copulation. That's right, APPEAL and they are winning. I worked as a Correctional Officer for 13 years and could give you several names of convicts that have gotten out of Prison on this very technicality. But I could be charged for releasing that info, just the same as I could be charged with releasing the names of those with AID's. Semper Fi.
_________________
Helicopter Marine Attack Squadron 169 which is now HMLA-169. They added Huey's to compliment the Cobra effectiveness. When I served we just had Snakes.

[Jeremy Eaton]

Regarding the burning of the flag. Our family once had a birthday cake with little flags on it, and one almost caught on fire. If it did catch on fire, who would have been tried? The birthday person or the person who put the flags on the cake? If it wasn't their intent to burn the flag, should they still be tried?

Look forward to thoughtful responses to these thorny issues.

[sdpatriot]

here is an excelent essay that does a much better job at explaining
what i was trying to get across: http://earlyamerica.com/review/fall98/original.html

and a tid-bit from the essay:
However in 1947, the Supreme Court, in Everson v. Board of Education,23 used Jefferson's Danbury letter as a pretext to disregard centuries of legal tradition in the common law, the Declaration of Independence, the writings of the founding fathers, the notes and records of the Constitutional Convention and over a century of American constitutional jurisprudence. With the stroke of a pen, the Court created a new "law" by incorporating the Fourteenth Amendment (which dealt exclusively with specific State powers) with the First Amendment's federal provision against an "establishment of religion".

The result of this legal hocus pocus was devastating: first, the Court reversed 150 years of Constitutional precedent which limited the First Amendment's application to Congress, i.e., the national government; second, the Court declared that federal courts were now empowered to restrict not only the religious activities of the national government, but the religious expressions of the people and the States as well. Five years later in Zorach, the Court tried in vain to resuscitate the First Amendment's original intent:

sdpatriot
_________________
"Guard against the impostures of pretended patriotism."
George Washington, Farewell Address, September 19, 1796

[publius]

[ASPB]

[publius]

[ASPB]

[sdpatriot]

[publius]

[publius]

[ASPB]

It is clear that you place supremacy, incorrectly in my opinion, in the hands of the courts. You are mistaken in this view and I imagine if you were to discuss the issue with any member of the existing Supreme Court they would concur with what I've said in this debate.

I only ask that you consider whether or not it makes sense for a politically appointed (for life) group of nine be the final arbiters of the contract that controls what you term to be your inalienable rights.

It's clear to me that you're mistaken but, reasonable people can differ. I strongly suggest that you study your conclusions more extensively. There are a significant number of highly respected Constitutional lawyers on both sides of the political spectrum. If you listen only to those that support your views, you will be misled.

I'll exit this debate with one un-ascribed quote to consider:

Of the People, By the People, For the People! Not Judges! Supreme or not.

Capice?
_________________
On Sale! Order in lots of 100 now at velero@rcn.com Free for the cost of shipping All profits (if any, especially now) go to Swiftvets. The author of "Sink Kerry Swiftly" ---ASPB

[publius]

This and the other two threads dealing with the Constitution, Bill of Rights, judiciary, etc., have been stimulating.

A lot of views have been expressed and questions raised. Among the questions I see these:

1. Is a right more fundamental and more important than a law -- does a right take precedence over a law?

Stated perhaps more to the point:

2. Do laws passed by legislatures, acting in accordance with the wishes of most of their constituents, supercede the importance of a right or rights, or regardless of the will of the majority can and should such laws be properly struck down if they violate individual rights?

3. What is a right and where do rights come from? Do they come from the Constitution, Bill of Rights, where?

4. Who decides the answers to the above questions? Why?

5. Is it proper for courts to interpret the Constitution and laws?

Since everyone is concerned that the Constitution be applied correctly, how can we know what the original understanding was regarding these issues?

The best authorities on the Framers are the Framers themselves. In a moment we'll let two of them speak. However, I wish to specifically address the writings of Alexander Hamilton. Hamilton favored a more powerful and activist government than someone like Jefferson. Both had many allies and to this day we argue about the proper size and role of government and all try to root their arguments in the views of the Founders.

If Hamilton was for big government, something anathema to conservatives by article of faith, can his views be trusted on any other matter? Consider the following.

When the 39, I think, guys signed the Constitution in Philaldephia, a fraction of the appointed delegates, we must remember that the document was not then the supreme law of the land. It had to be ratified by three fourths of the states to become so. Special ratifying conventions were established for this purpose and held in each of the states. This meant that the people whose representatives would cast their votes, and those representatives themselves, needed an understanding of the new Constitution if they were to be able to fairly pass judgment upon it. The Constitution had its opponents as well. Both sides went to work writing and propagandizing. Among all that output, one set of writings ascended to a place of importance above all else, the Federalist Papers authored principally by Hamilton, with about a third by Madison and a very few by John Jay. These papers were widely read and quoted at the time including in the ratification debates. As such, far more than any other writings, the Federalist Papers represent the understanding the people had of the Constitution and it was upon that understanding that the Constitution was ratified.

As a further problem, no record was kept of the debates in Philadelphia, except non-verbatim notes that Madison hurried home to record at the end of eadh day and he chose to keep those notes from publication so the people could see them until his death 50 years later! (So much for easily and unquestionably ascertaing original intent!)

The Federalist Papers therefore are of exceptional importance if we want to get at the original intent not just of the authors of the Constution, but even more importantly of the general populatoin whose delegates ratified the Constitution and made it the supreme law of the land, superior to any other law that contradicted it. For this reason the Federalist papers are quoted in innumerable court cases including numerous decisions of the Supreme Court of the United States, and studied by students and scholars above all other sources for understanding the Constitution save the document itself.

What Hamilton has to say counts, and it counts whether you like Hamilton's views on the robustness of government or not. As to the charge that Hamilton was an elitist, this is ridiculous on its face. Virtually all the Founding Fathers were elitists, with the possible exception of Franklin, and gave us a Constitution, that, had it not been amended would prevent a great many of us reading these words from even voting. Rules for "electors" were left to the states and their hodge-podge of biased approaches. It was not just that in most cases you had to be a property owner, all of us are, but it had to be a freehold - no debt encumbering it. And if you worked for someone else you were regarded to be subject to his will, so forget voting again. It wasn't for another 50 years that all white men had the vote regardless of economic status. Hamilton's greatest opponent on his views that the future was with the cities and commerce was Jefferson, and Jefferson thought the future was with gentlemen farmers minding their great estates. Jefferson lost that bet on the future. The elitist charge is at once true and bogus.

In the next article I will post the whole of Federalist #78, the best single source I know of regarding the judiciary, relative powers of the branches, doctrine on who will decide questions of Constitutional muster, qualifications and terms for judges, and many more. Remember it is the understanding upon which the Federalists (and we're all Federalists, right?) won the debate and the day.

Secondly, since as I see it, there is so much misuderstanding regarding rights, I will quote the whole of Madison's address to the House of Representatives (he couldn't get elected to the Senate from Virginia) in 1789 wherein, as an opponent to the necessity of a Bill of Rights, even one among whom there was anxiety about its danger, he nonetheless warms to the task of proposing amendments designed to enumerate at least the basic rights that a large fraction of the wavering populace wanted to see in black letter, and in the process makes a marvelous explanation of rights, their rightful place, how they are secured and who shall do so.

Don't be concerned or confused because Madison proposes more than ten amendments, three weren't adopted and one took 200 years to be ratified. Don't be confused that he proposes to amend the body of the Constitution itself, instead of adding these amendments on as a separate Bill of Rights, as occurred in the end. And don't be confused by the numbering; I think if you subtract three you'll get the correspondence to what was eventually adopted by Congress and soon thereafter ratified by the states.

Most modern Americans have a short attention span. It takes a commitment of time and intellectual energy to read and understand these two sources. A great number of our forebears did it. I commend these papers to everyone here who wants to understand the present status of the issues we have been discussing by comprehending their beginnings. There are numerous sources on the Internet and in libraries for further study.

These writings are treasures, pearls. Enjoy!
_________________
Ours is a world of nuclear giants and ethical infants. We know more about war than we know about peace, more about killing than we know about living. -Gen Omar N. Bradley