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  • #31
    Originally posted by JAD_333 View Post
    To add to what Astralis and Dale said, the starting point for the founders was the inalienable right to life, liberty and happiness. Those words are in the preamble of the Declaration of Independence, most of which is an enumeration of the gripes the colonists had against King George III. The Declaration is not law, per se.

    After the Continental Congress had approved the Declaration it was sent off to the British with a cover note from John Hancock, speaker of the congress, saying in effect, this is why we are revolting and be advised that henceforth we are an independent nation.


    So, imagine a people starting from zero with a clear understanding of what kind of government they didn't want, hence the kind they did want, and realizing they must limit the power of their new government so as to protect the people's inalienable rights, yet give it enough power to protect the nation from foreign enemies and the people from capricious government and each other.

    The first attempt to set up a government (Articles of Confederation) proved unworkable because the federal government it set up was too weak. The second attempt, the Constitution, is what we have now. While it does not mention the inalienable rights by name, it's structure, particularly the Bill of Rights and most subsequent amendments circumscribe them.

    One reason the word liberty does not appear in the Constitution or in any other law--I think Asty was getting at this--is that liberty is an elastic term, with one extreme being absolute liberty (no restraints whatsoever) and the other being liberty so long as you don't get in the government's way. Thye medium is equal liberty for all, but only up to the point that it does not encroach on the liberty of others. Thus, if liberty can be what we each of us conceives it to be, writing into law subjects it to a million interpretations, which would give the courts unlimited power. Better to establish the upper and lower limits of liberty by explicitly stating what government cannot do, which then, by implication, conveys and restricts a citizen's liberties. Under those circumstances, I think the founders did a pretty good job of upholding the concept of "we the people".

    The Constitution is all there is between us and the return of dictatorial government. That's why I, for one, am a stickler for upholding it, even when a little twist or bend here and there will help people in need. Need and expediency are erosive to any social contract. To Obamacare's insurance mandate I can hear Patrick Henry now, 'give me liberty or give me death' (no pun intended).
    The reason, why President Lincoln was so inspiring, was because he was perceived to be the most unhappy citizen of his time, so, actually he couldn't guarantee his own happiness. You know, I am inclined to think, that the state is to serve the people. But, should not it be that the people should uphold the state? It is most logical, that the U. S. citizen feels, that the state has to take the lead, to serve the people. It is also most heartening, that immigrants learn to be patriots, I mean, new immigrants. But, the state is not seen anywhere, in perception, in the United States. How exactly should the U. S. Govt. serve it's people? It need not do anything, where it needs to communicate with the ordinary citizen, unless it has to do with security, and law and order. I could be wrong in my observation.

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    • #32
      DE,

      that argument works only if you believe that the opposite of "living document" is "a piece of paper".

      i don't.

      here, living document is more of a technical term.

      perhaps this is me as the inveterate moderate, but while i lean more towards the "living document" camp, i'm not particularly impressed by either extreme, either the living document folks or the strict constructionists.

      the former have a tendency to use the living document idea to avoid the legislative process-- in short, use the courts as first-resort rather than last-resort; the latter have a tendency to idolize the founding fathers as the only fount of wisdom and turn the Constitution into nothing less than God-given truth.
      There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that "My ignorance is just as good as your knowledge."- Isaac Asimov

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      • #33
        Originally posted by AdityaMookerjee View Post
        The reason, why President Lincoln was so inspiring, was because he was perceived to be the most unhappy citizen of his time, so, actually he couldn't guarantee his own happiness.
        Perhaps he was perceived as unhappy, although the term most used to describe his darker moods was melancholy. But I think what inspired people most was his honesty, simplicity, kindness and reliance on reason. He genuinely liked people and never felt malice toward anyone. I wouldn't say he couldn't guarantee his own happiness, but he freely pursued it, and that is all any of us can ask for.

        You know, I am inclined to think, that the state is to serve the people. But, should not it be that the people should uphold the state?
        If the people create the state and the state functions according to the people's will, then logically the people should uphold the state.

        I am uncomfortable with the phrase "serve the people" as a primary purpose. While the state in fact serves the people, foremost it obeys the will of the people.


        ...the state is not seen anywhere, in perception, in the United States. How exactly should the U. S. Govt. serve it's people? It need not do anything, where it needs to communicate with the ordinary citizen, unless it has to do with security, and law and order. I could be wrong in my observation.
        We created a government that can make laws. We would not have done so if we had been unwilling to obey laws. I suppose the government would seem distant to you if you didn't have a job, run a business, own property, drive a car, etc. Most laws govern that sort of activity. But if you want to live detached from these things, you are free to do so and government cannot touch you, except perhaps in times of war when you may be conscripted into the armed service. That may change soon. Our new health care law will require even a hermit in the woods to buy an insurance policy. The government is hard put to find where it has the power to do so under our Constitution.
        To be Truly ignorant, Man requires an Education - Plato

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        • #34
          Originally posted by astralis View Post
          that argument works only if you believe that the opposite of "living document" is "a piece of paper".

          i don't.
          right, i mistook living document to mean 'working' document.

          Originally posted by astralis View Post
          here, living document is more of a technical term.
          living document means much more, one that grows ie changes and that evolving interpretations are possible.

          The part i did not understand here is this....

          Originally posted by wiki
          Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.
          Isn't amendments part of the living document camp ?

          Originally posted by astralis View Post
          perhaps this is me as the inveterate moderate, but while i lean more towards the "living document" camp, i'm not particularly impressed by either extreme, either the living document folks or the strict constructionists.
          Where do those that are in favour of amendments fit in between these two camps ?

          Originally posted by astralis View Post
          the former have a tendency to use the living document idea to avoid the legislative process-- in short, use the courts as first-resort rather than last-resort; the latter have a tendency to idolize the founding fathers as the only fount of wisdom and turn the Constitution into nothing less than God-given truth.
          Your link cautions against linking the strict constructionists with originalists or textualists (god given truth seems to apply to the latter two).

          Originally posted by wiki
          However, "strict construction" is not a synonym for textualism or originalism, and many adherents of the latter two philosophies are thus misidentified as "strict constructionists."
          I find its a pretty difficult call to decide which camp is more suitable. My take would be to interpret as the letter of the law and no more. Evolving interpretations can be problematic i think. Reading a lot more into what was written or intended. Amendments would be more clear here.

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          • #35
            DE,

            Isn't amendments part of the living document camp ?
            neither. this whole debate has evolved largely because the difficulty of getting a constitutional amendment through (either progressive or conservative) has vastly increased.

            instead, this is about how to interpret the Constitution and the first ten amendments, aka the bill of rights.

            I find its a pretty difficult call to decide which camp is more suitable. My take would be to interpret as the letter of the law and no more. Evolving interpretations can be problematic i think. Reading a lot more into what was written or intended. Amendments would be more clear here.
            i try not to choose camps, although i admit i have a slight bias towards the living constitution view given the fossilization of the amendment process.

            clearly the Founders had never considered things such as abortion, or privacy, or internet intellectual property rights, etc. their society was absolutely different from ours, both technologically and socially. for a Constitution to have any meaning to society, society must feel like it reflects their values, their beliefs, and goals. for the vast majority of cases, while the Constitution as it is does a great job of it some 225 years in the future, already we see some uncomfortable gaps at the edges, where judges must extrapolate such murky things as the "spirit of the law" or "what the original Founders WOULD have thought of that idea".

            makes me wonder what things will look like in another 100 or 200 years.
            There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that "My ignorance is just as good as your knowledge."- Isaac Asimov

            Comment


            • #36
              Originally posted by astralis View Post
              neither. this whole debate has evolved largely because the difficulty of getting a constitutional amendment through (either progressive or conservative) has vastly increased.

              i try not to choose camps, although i admit i have a slight bias towards the living constitution view given the fossilization of the amendment process.
              Why has getting amendments through become more difficult in the US ?

              What i'm trying to figure out is why my country which is a quarter the age of yours has pushed through nearly four times the number of amendments that yours has (~120 vs. 30)

              It makes me uneasy that people in my country can do that much in so little time, but this is only because you've done a lot less in this regard.

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              • #37
                Originally posted by Double Edge View Post
                Why has getting amendments through become more difficult in the US ?

                What i'm trying to figure out is why my country which is a quarter the age of yours has pushed through nearly four times the number of amendments that yours has (~120 vs. 30)

                It makes me uneasy that people in my country can do that much in so little time, but this is only because you've done a lot less in this regard.
                Just because the Indian parliament has put in a bunch of amendments does not mean that we are better in being a constitutional democracy. To me it shows a lack of understanding of the implications of changing the structure of government. I find especially galling the amendments passed by the Congress government under Indira Gandhi in 1977, especially the curtailment of rights. Also, many of the other amendments seem more suited to administrative maters rather than the gravitas of a constitutional amendment - such as the retirement age of judges and increasing of profession tax.
                "Is God willing to prevent evil, but not able? Then he is not omnipotent. Is he able, but not willing? Then he is malevolent. Is he both able and willing? Then whence cometh evil? Is he neither able nor willing? Then why call him God?" ~ Epicurus

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                • #38
                  DE,

                  Why has getting amendments through become more difficult in the US ?

                  What i'm trying to figure out is why my country which is a quarter the age of yours has pushed through nearly four times the number of amendments that yours has (~120 vs. 30)

                  It makes me uneasy that people in my country can do that much in so little time, but this is only because you've done a lot less in this regard.
                  frankly, for a mature democracy like the US, amendments SHOULD be less common-- we've had a lot of time to "perfect" the Constitution, so there should be fewer and fewer basic issues that require change.

                  however, the process has become immensely more difficult because of polarization of the body politic; and in a much longer-term view, as american politics in general over the last 100 years has become less representative and more democratic/populist.
                  There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that "My ignorance is just as good as your knowledge."- Isaac Asimov

                  Comment


                  • #39
                    Originally posted by AdityaMookerjee View Post
                    You know, if you look at the movie, 'Gladiator', the Roman state was in a situation, where the people and the state were acting in concord, and accord, but against the ideals of that state. What is interesting, is, the movie, shows this situation existing, just after one of the greatest Emperor's of Rome is dead.
                    actually as you refer to the era of the princeps you are talking about the period of the pretend republic. Augustus had taken all the reins of power under a veil of republican ideals and senatorial request. That movie was a fiction remember. The end of massive influx of new slaves, plague and the end of the fortune Trajan had provided and Dacian mines and the systematic looting of parthian mesopetamia had much more to do with the end of that period than a Leader pretending to be Hercules. Commodus was hardly worse then Nero or Gaius. I am not sure of the poibnt anyway. We have stronger democratic institutions than we did 120 yrs ago although, we did just roll our campaign laws back to that period when goverment was hardly of or for the people
                    Where free unions and collective bargaining are forbidden, freedom is lost.”
                    ~Ronald Reagan

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