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HershOstropoler
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Well, what would "fundamental law" say on this issue?
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The Templar
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People's Republic of the East Village
Oct 2001
time: 00:28
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quote:
Originally posted by Ned
Templar wraps criticism of Rehnquist in sophistries. One simply has to go back to his original criticism of the relatively recent holding that the 11th amendment prevented citizens from suit states for federal causes of action, such a patent and copyright infringement. His criticism was almost solely based on the lack of an express prohibition of such a suit in the constitution or amendments. |
No. Art III gives the fed courts the power to adjudicate suits between states and citizens of other states. Thus, citizens may sue states under Art. III. (Unless you are saying that Art III, ONLY allows citizens to sue states they are not residents of - a position you should justify). The 11th Amend changes this. This is also why soverign immunity is not fundamental - it was tacked on after the fact. Unless, Hersh, "you are using 'fundamental' to mean something other that "basic to".
quote:
But, judicial reasoning has never relied on the text itself in the cases of ambiguity. It always has relied on evidence outside the text. So, if I understand Templar correctly, he says that in the case of ambiguity, simply plug in the right answer according to "modern" thinking, and ignore evidence or fundamental law that might shed light on whether this was the intent of the drafters. |
This is precisely Legal Process Theory - popularized by Hart and Sacks - and the predominant theory when most of today's Supremes were still in Law School. I glad you think I thought of this all by myself - but I didn't. LPT is a combination of textual analisys and intent combined with finding the best current justification for a statute. Even Calibresi - a founding member of the utra-right federalist society IIRC - extols the virtues of dynamic statutory interpretation (a LPT notion).
Dude, when your in a hole, stop digging - you can't win this argument.
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Ned
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of Aptos, CA
Oct 1999
time: 21:28
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quote:
Originally posted by Imran Siddiqui
I understood what you were saying, I just don't understand why you chose to say it. As you could tell if you read the debate, we BOTH dislike original intent (and I think we both believe the 11th Amendment SHOULD be read as it was written... I just think that there is no way we can actually go back to it and no court will reverse that precedent).
Basically, you didn't 'get' what we resolved in the end or talked about during the debate  .
(The debate REALLY wasn't about the 11th Amendment, but about the stickyness of precedent). |
Imran, without going back to all your posts, is it your position that the Supremes can overturn precedent if the precedent would have been decided differently under, let us say, a purely textual approact to interpretation?
As to the "original intent," this should arise only in cases of ambiguity, cases of first impression. If a textualist would never find "ambiguity," but would resolve all disputes over interpretation by choosing among various definitions of words according to his or her political or philoshical beliefs, I must say, I strongly disagree with such a judicial approach. I believe such is tyranny. Templar appeared to disagree with Scalia only because Scalia was using 19th century definitions. He did not disagree with Scalia's basic approach.
If the ambiguity is to be resolve by resort to evidence, rather, the circumstances surrounding the drafting is the only evidence that should be considered, if it is available.
The Roe v. Wade case is study of the problems that may arise when one ignores original intent. The Supremes conducted a survey of the legal meaning of "person" as of the date of that decision. Since then, the opponents of Roe v. Wade have been trying to change the legal definition of person so as to overturn the decision.
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The Templar
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People's Republic of the East Village
Oct 2001
time: 00:28
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quote:
Originally posted by Ned
As to the "original intent," this should arise only in cases of ambiguity, cases of first impression. If a textualist would never find "ambiguity," but would resolve all disputes over interpretation by choosing among various definitions of words according to his or her political or philoshical beliefs, I must say, I strongly disagree with such a judicial approach. I believe such is tyranny. Templar appeared to disagree with Scalia only because Scalia was using 19th century definitions. He did not disagree with Scalia's basic approach. |
Oddly enough, I do think Scalia gets things generally correct with his textualist theories. His position is ultimately untenable because his theory of language is flawed. Scalia would do better to study contemporary philosophical and linguistic theories.
quote:
The Roe v. Wade case is study of the problems that may arise when one ignores original intent. The Supremes conducted a survey of the legal meaning of "person" as of the date of that decision. Since then, the opponents of Roe v. Wade have been trying to change the legal definition of person so as to overturn the decision. |
Here is one of those places where Scalia is dead on (yeah, I know Hammer and Sicle avatar and NOW defending Scalia). The nation is supposed to be a nation of laws, not men. Intent (if such exists) is a matter of the men not the law.
However, when you are dealing with a document like the constitution or legislation, how do you measure intent. There are multiple drafters and even more signatories. Is the "intent" the vector sum of all of the individual intents? Does the intent of the drafter alone count?
A classic example of this problem is in the Civil Rights Act of 1964. In an effort to kill the bill, southern legislators added an amendment that prohibited workplace discrimination with respect to gender. The Act passes with that amendment. Now, when a court hears a case involving workplace discrimination based on gender, how does it interpret the act? On the one hand, the text of the Act supports the case. On the other hand, the original intent behind that portion of the bill was not to protect people from gender discrimination - but to kill the bill. The text tells the court to do one thing, the intent to do another.
Roe v. Wade is a diffent problem for you altogether. First, we have no idea how the drafters of the constitution felt about abortion. Second, the right to abortion comes from the right of privacy - in this case privacy must be read expansively to include the right to control one's body (a right to be left alone as it were). Now Ned, you will probably say that there is no right of privacy mentioned in the constitution - and you are correct. However, the right to privacy may be constructively inferred from the 3rd Amend (no quartering), the 4th Amend (search and seizure), the 5th (right to remain silent, right to just compensation for takings), the 8th Amend (no cruel or unusual punishment), and the 9th (the enumerated rights are not to be read restrictively). Each of these amends points towards the right to be left alone. Expansive privacy is thereby inferred.
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chegitz guevara
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Ft. Lauderdale, FL Communist Party of Apolyton
Jun 2000
time: 00:28
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It's not difficult for the Supremes to overturn predent, they just don't want to establish a precident making it easy to overturn precident. More simply, they want their own decisions to stand far into the future. If they can overturn precident willy-nilly, so can their decendents, and where will that leave us?
Furthermore, they want a well-established road laid ahead of them. Brown v Board of Education didn't come out of the blue, but as the final act in a long act of chipping away at Plessy v. Fergussen. If they were simply to say, no more abortion, period, end of sentence, Congress could punish the court any number of ways (were it controlled by liberal Democrats). They could institute mandatory retirment, increase or decrease the number of members on the court, institute term limits, etc., so the Court must tred carefully or at least on the side of history when it treds boldly.
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Sikander
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Boulder, Colorado, United Snakes of America
Jan 2000
time: 22:28
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quote:
Originally posted by chegitz guevara
It's not difficult for the Supremes to overturn predent, they just don't want to establish a precident making it easy to overturn precident. More simply, they want their own decisions to stand far into the future. If they can overturn precident willy-nilly, so can their decendents, and where will that leave us?
Furthermore, they want a well-established road laid ahead of them. Brown v Board of Education didn't come out of the blue, but as the final act in a long act of chipping away at Plessy v. Fergussen. If they were simply to say, no more abortion, period, end of sentence, Congress could punish the court any number of ways (were it controlled by liberal Democrats). They could institute mandatory retirment, increase or decrease the number of members on the court, institute term limits, etc., so the Court must tred carefully or at least on the side of history when it treds boldly. |
You forgot to mention my favorite, reducing their pay to 1$ a year!
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:28
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Here Imran:
Synonyms: analyze, be afraid, decipher, deduce, define, explicate, expound, infer, interpret, parse, read, render, spell out, take, translate, understand
Antonyms: complicate, confuse, obscure
Your use of the word is the opposite of what it means. 
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