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Old June 11, 2010, 10:53 PM   #26
animal
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imo., the language is still pretty close, more "turns of phrases" and such. Of course, original intent is by the intent of those at the time.

The Constitution was written in English that the average educated man of the day could understand. That said … the man that was considered educated in 1789 was far different than today. They had a firm base in classical philosophy, logic, history, etc. that is sorely lacking in the educational system today.

IMO, the best primer for someone to begin with …a "short-cut" of sorts ... and should be studied even before reading the Federalist Papers, Jefferson, and others is the philosophy of John Locke.
Locke heavily influenced not only the thinking of the founders, but the way in which they thought.
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Old June 11, 2010, 11:24 PM   #27
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No language is so clear that a determined and unscrupulous opponent cannot misconstrue or ignore it.
You have clearly forgotten about those supporters who don't share the same views. The discussion of what consitutes a "well regulated militia" is a classic example.

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Given the meanings of the word "regulate" at the time, I would suggest that "well-regulated" was intended to mean "in good order".
Okay, vague phrase followed by vague definition. What does "in good order" necessarily mean and who determines what is in good order.

I am not sure how much the work "regulated" would have changed meaning in 20 years, but in Federalist No. Alexander Hamilton does not appear to be using the term of "regulated" (or its various tenses) to mean in good order. After the salutation the first statement is that...

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THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
The "power of regulating the militia" seems to go well beyond simple voluntary people who are ready to perform and he later stresses the regulation of the militia by the national authority.
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Old June 12, 2010, 02:12 AM   #28
Hugh Damright
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there is nothing in the language of the Constitution to prevent [using the amendment process to alter the basic frame of government]
I think it's first and foremost a matter of state sovereignty ... we saw with the Articles of Confederation that if amendments must be ratified by every State then that may be too difficult ... and so we created the US Constitution which can be amended by 3/4 of the States, and Virginia consented ... but I do not believe that Virginia ratified an Article V which empowers 3/4 of the States to relieve us of our sovereignty, or to modify the basic nature of the compact ... if the amendment power is construed to be absolute such that 3/4 of the States can do anything, even amend away Virginia's sovereignty, then that seems to go against the spirit of the US Constitution ... in my view, a new frame of government would not be binding upon any State without their consent, because the States are sovereign.
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Old June 12, 2010, 02:28 AM   #29
Frank Ettin
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Originally Posted by Hugh Damright
I think it's first and foremost a matter of state sovereignty ... if the amendment power is construed to be absolute such that 3/4 of the States can do anything, ... then that seems to go against the spirit of the US Constitution ... in my view, a new frame of government would not be binding upon any State without their consent, because the States are sovereign.
An interesting theory. Can you cite some legal authority for the proposition, or is it just your unsupported view?

The Constitution itself does not limit the scope or reach of permissible amendment, except as narrowly stated. Under the plain language of the Constitution, anything, save that exception, is possible.

Of course, if 3/4 of the States ratified an amendment to the Constitution that one or more of the remaining States found so strenuously objectionable that they were disposed to resist its application, who can tell what would happen. But that would be a practical and political matter and would not arise from any organic limitation in the permissible scope of amendment of the Constitution.
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Old June 12, 2010, 09:19 AM   #30
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We also need to learn to just take a phrase for it's simple meaning.

We have forgotten how to just accept a sentence for what it says.

Analyze, then over-analyze and then re-analyze the over-analyzed result.

Just read it. It says what it means.


Remember Bill Clinton? "It depends on what the meaning of "is", is?

Please.

Just take it for what it means.
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Old June 12, 2010, 09:29 AM   #31
Al Norris
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Originally Posted by Hugh
in my view, a new frame of government would not be binding upon any State without their consent, because the States are sovereign.
The telling phrase is that which I underlined.

I hate to break it to you, Hugh, but the States are not sole sovereigns.

Like it or not, the States, including Virginia, gave up that status when they ratified the Constitution.

The Republic, as it was ratified, was a system of shared sovereignty. The States retained much of their sovereignty as regards their own territory and their own citizens, but gave up the role as sovereigns to all things external. Those sovereign powers belong to the central government.

The idea that States are sovereign was utterly destroyed when the Articles of Confederation were thrown out in favor of the Constitution.

To get back on topic, somewhat, should a Constitutional Convention be held, wherein the current Constitution is thrown out (ala the Articles of Confederation), then only those States that ratified this new compact would be part of the new government. Those States not ratifying the new document, would become sovereign and be on their own.

If however, this Convention merely amended the current Constitution, and 3/4ths the States ratified the amending documents, then all the States would be subject to those amendments. As noted, the restriction here is that no state shall be deprived of its equal suffrage in the Senate, without its consent. No mere amendment can alter that, without throwing out the current Constitution (at least, that is my understanding).
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Old June 12, 2010, 10:06 AM   #32
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Every modern civil rights issue stems from a mis-reading or mis-application of the existing document.

Every single one.

Gun rights.
Abortion.
Religious freedom.
Gay rights.

Where is abortion in the COTUS? If there's anything that would apply it's the idea of "all men" and "inalienable rights".

Where is the idea that a teacher praying at school violates the first amendment?

We had better learn to read what's there before we start adding more.


Actually, the current interpretations of the 2nd are MUCH closer to original intent that are many (most) other interpretations of the other amendments, and main body, of the COTUS.

"Congress shall make no law establishing a state religion."

Look where that has got us?!

Imagine if the 2nd was interpreted the way that clause has been interpreted?

We should thank our lucky stars at this point and concentrate on keeping what we have and fixing the other broken parts.

The last thing we need right now is more that can be misconstrued.
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Last edited by Brian Pfleuger; June 12, 2010 at 02:21 PM. Reason: punctuation, clarity
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Old June 12, 2010, 10:20 AM   #33
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Every modern civil rights issue stems from a mis-reading or mis-application of the existing document.

Every single one.
I guess that depends on your definition of "modern". I can think of a few 20th-century civil rights issues that either legitimately required fixes to the original document or were resolved by an interpretation that I don't consider to be a "mis-reading or mis-application" of the Constitution.
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Old June 12, 2010, 10:27 AM   #34
Brian Pfleuger
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I can think of a few 20th-century civil rights issues that either legitimately required fixes to the original document or were resolved by an interpretation that I don't consider to be a "mis-reading or mis-application" of the Constitution.
Yes, I should have said "current" rather than modern.


The issue of humanity was on the table from day one.

All "men"....

I am speaking of current issues that involve reading into, extrapolating and essentially creating out of thin air, "rights" that are not and never were intended to be presented.

Abortion. It's either not there at all (states rights) or it's forbidden by the "all men, inalienable rights" clause. Same with gay rights.

"Congress shall make no law...."

Current, and badly extrapolated. Another misapplication. This time, it's ONLY a federal issue. "Congress..."

The commerce clause.... my God, don't get me started.

We seriously need some reading comprehension classes in "Judge School" or something.
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Last edited by Brian Pfleuger; June 12, 2010 at 02:22 PM. Reason: clarity, grammar
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Old June 12, 2010, 01:22 PM   #35
Hugh Damright
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The idea that States are sovereign was utterly destroyed when the Articles of Confederation were thrown out in favor of the Constitution.
I disagree ... in my view, if the US Constitution had an article which said that "the idea that the States are sovereign is hereby utterly destroyed" it would not have been consented to ... I believe the States intended to delegate enumerated powers, not their very sovereignty.


Quote:
An interesting theory. Can you cite some legal authority for the proposition, or is it just your unsupported view?
I am not aware of legal authority regarding the scope of the amendment power. At the Constitiutional Convention, Sherman "expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate" ... by declaring that equality in the senate is beyond the scope of the amendment power, does it follow that the States cannot be abolished? Does it follow that their sovereignty cannot be abolished by the amendment process? In Federalist 43, Madison said that "The exception in favour of the equality of suffrage in the Senate was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the Legislature ... if the principle of equal representation in the Senate is intended to imply and secure State sovereignty, and it is declared to be beyond the scope of the amendment power, then it doesn't seem like such a grand leap to consider that perhaps State sovereignty is beyond the scope of the amendment process.

Last edited by Hugh Damright; June 12, 2010 at 01:28 PM.
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Old June 12, 2010, 05:02 PM   #36
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... to the residuary sovereignty of the States, ...
RESID''UARY, a. [L. residuus. See Reside.]

Pertaining to the residue or part remaining; as the residuary advantage of an estate.
The above definition form the Websters 1828 dictionary.

Sorry Hugh. The States were not sole sovereigns. All your disagreeing will not change the fact of shared (or dual, if you like) sovereignty. The very quote you use (Federalist #43), tells you this.
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Old June 12, 2010, 06:04 PM   #37
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I disagree ... in my view, if the US Constitution had an article which said that "the idea that the States are sovereign is hereby utterly destroyed" it would not have been consented to ... I believe the States intended to delegate enumerated powers, not their very sovereignty.
IDK how you could know the definition of sovereign and believe the states retained the position of "sole sovereign" after ratifying the Constitution. YOu either gave up the legitimate use of force in some situations or you didn't, and the ratification of the Constitution was clearly giving it up in some situations.
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Old June 13, 2010, 10:27 PM   #38
Hugh Damright
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I also noticed that in the NC Ratifying Convention, on July 29 1788, a Mr. Iredell said that "in order that no consolidation should take place, it is provided that no state shall, by any amendment or alteration, be ever deprived of an equal suffrage in the Senate without its own consent" ... as I understand it, the Framers made a distinction between a consolidation where the States relinquish their individual sovereignty, and a federal system where the States retain their sovereignty ... and the amendment power was not intended to allow 3/4 of the States to consolidate i.e. to take away Virginia's sovereignty without our consent.
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Old June 13, 2010, 10:47 PM   #39
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Originally Posted by Hugh Damright
... and the amendment power was not intended to allow 3/4 of the States to consolidate i.e. to take away Virginia's sovereignty without our consent.
Again, on what do you base that contention?

The intent of the Founding Fathers in found in their words. The amendment power is limited only insofar as, "... no state, without its consent, shall be deprived of its equal suffrage in the Senate..." That's what the Constitution says, and that was what Mr. Iredell, as quote by you, said.

Other than that, nothing in the Constitution limits the scope of permissible amendments. Whether or not a particular amendment ratified by 3/4 of the States would nonetheless be likely to have problematic political or social repercussions is another matter, but such an amendment would still be permissible under the Constitution.
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Old June 13, 2010, 11:12 PM   #40
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How Jefferson and Monroe felt about the power and scope of the Federal government, as prescribed by the Constitution, can be found in the Kentucky Resolution of 1798 and the Virginia Resolution of 1798.

Link to Resolutions: http://www.constitution.org/cons/kent1798.htm

The following resolutions were proposed to the Kentucky Legislature, and this version was adopted on November 10, 1798, as a protest against the Alien and Sedition Acts passed by Congress. They were authored by Thomas Jefferson, but he did not make public the fact until years later. This represents one of the clearest expressions of his views on how the Constitution was supposed to be interpreted.

The Kentucky Resolutions of 1798

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

Etc.
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