SLD

OK, FTR, a few quick points.

As I said, original intent is a misnomer. It does not exist as so many others would like it to exist. There is no such thing as one original intent. There were numerous founders and they all interpreted the Constitution in their own way to their own political benefit. One of the most important points in understanding what the founders said is that they were not writing for future generations so much as they were trying to advance for their own political agenda.

My point about the Klan was not that they and the founders thought alike or that those of you arguing the original intent position are like the Klan, it is simply this: for most of the founders the phrase “freedom of speech” had a particular legal definition understood by all in the 18th Century. To an 18th Century jurist it meant merely that there could be no prior restraint on speech, but that once you uttered the words you could be prosecuted for saying certain things – such as seditious libel. This is why Adams had no constitutional qualms in passing the Alien and Sedition Laws. They were perfectly Constitutional and the Courts upheld them as Constitutional when they were challenged.

Do you believe that the law of seditious libel is Constitutional? Probably not, at least not from other conversations I’ve had with you. But then you aren’t really being an original intent theorist, are you then? Indeed no one is seriously an original intent theorist when it comes to that with the possible exception of a few nuts out there such as might be in the KKK.

Now don’t get me wrong, original intent is not to be totally disregarded when interpreting the Constitution. Indeed, it is an essential tool, but it is only one of many other tools. In deciding Constitutional questions, I think judges must use several tools: 1) read the words, 2) understand the history of the framing (i.e. original intent), 3) how the amendment has been interpreted in the past by courts, and other theorists, 4) how has it worked in practice, historically, 5) what should our goals be as a society today, and 6) err on the side of liberty over security. No one tool should be used exclusively. There is no one way to interpret the Constitution.

Your point about Madison’s views not being the only ones worthy of consideration is well taken. However, my point was really a legal one. Like the First Amendment, statutes tend to have a tortured history, but the Supreme Court has held on numerous occasions that when trying to interpret ambiguous wording in a statute, the views of the primary drafter and architect of the bill are to be given considerably greater weight than other views. That principle has been a part of our common law of statutory construction for decades (if not centuries), but admittedly it is partly a matter of expedience, and in a larger philosophical debate (as opposed to the legal battle that Judge Thompson must decide) it is not quite as helpful. Nevertheless, Madison’s opinion is IMHO the starting point for interpreting the Bill of Rights.

You also misunderstand my point about Moore’s Christianity. It is not that his particular moral viewpoint finds its way into the law, all judges’ moral viewpoints find their way into the law somehow, but that Moore’s open use of his religious beliefs at the very least creates the appearance of bias against those who do not share them. That is unacceptable. What if one of your insureds was an atheist and in front of him when he was a trial judge (and the only vote), and he refused to join in the prayers Moore started Court off with? Would you think that your insured would get a fair trial? I would think not. I know a judge here in Jefferson County that is every bit as much a fundamentalist Christian as Moore is, but he does not conduct his courtroom such that he would ever know something like that which might sway his prejudices unfairly against a litigant.

V/R

SLD

Living Dead Chipmunk

Um.. hello? Anyone home?

pug846

It's been a few days since he has responded and it was a holiday weekend. Not everyone's life revolves around the internet. (Not sure why not though...) Give the guy a break.

hezekiah jones

Indeed. It is exactly the same as Newdow, in that none of its opponents have yet successfully deconstructed its reasoning.

Not only do the conservatives simply bluster in the media, conservative Justices bluster in their dissents. Witness Scalia's typically abusive reaction to the Court's denial of certiorari to an appeal from Freiler v. Tangipahoa Parish Bd. of Educ., a 5th circuit creationism decision from 1999 (the creationists lost that one too).

Furthermore, the Supreme Court chose not to clarify its establishment clause criteria in the recent school vouchers case, Zelman v. Simmons-Harris, so the lower courts are still "stuck" with applying the Lemon, endorsement, and coercion tests. This Roy Moore business is yet another case in point.

The Supreme Court itself is the author of the confusion and the lower courts are simply following mandatory, primary authority. In the meantime, however, it is entertaining to watch the social conservatives flail away in their typically non-substantive manner.

Shake

There are a couple of good links about this issue on <a href="http://www.infidels.org/wire/index.shtml" target="_blank">the Infidels newswire</a> although I won't link each story individually.

pug846

Do you happen to have a link handy for that?

beejay

<a href="http://supct.law.cornell.edu/supct/html/99-1625.ZD.html" target="_blank">Legal Information Institute at Cornell Law School</a>

Here's one link.

fromtheright

Give the guy a break.

Thanks, pug.

SLD,

As I said, original intent is a misnomer. It does not exist as so many others would like it to exist. There is no such thing as one original intent. There were numerous founders and they all interpreted the Constitution in their own way to their own political benefit. One of the most important points in understanding what the founders said is that they were not writing for future generations so much as they were trying to advance for their own political agenda.

SLD, I never said that original intent is one monolithic entity clear and unambiguous on all issues. In fact I said


they all interpreted the Constitution in their own way to their own political benefit.
they were trying to advance for their own political agenda.

With apologies for any ripping from context, I do disagree with that analysis. Certainly I'm not naive enough to think that there were not selfish political motivations involved in some of the actions and decisions of the Founders, but I'm also not cynical enough to think their decisions were based solely on a calculus of personal benefit. Was there no ideological or intellectual effort involved in the formation of those political views other than how they would benefit from their conclusions?


My point about the Klan was not that they and the founders thought alike or that those of you arguing the original intent position are like the Klan

Thank you but

no one is seriously an original intent theorist when it comes to that with the possible exception of a few nuts out there such as might be in the KKK.

it still sounds like the smearing that many of you decry when pro-lifers liken pro-choicers to Nazis. No one on either side likes such comparisons.


This is why Adams had no constitutional qualms in passing the Alien and Sedition Laws.

Point well taken. My view of that is that someone looking to original intent must look at whether those laws were consistent with the clear language of the amendment and the history behind it. It is clear that in the fever of the Republican-Federalist debates the Federalists got out of hand and were inconsistent with the clear history behind the First Amendment's speech guarantees going back to English history.


Your point about Madison’s views not being the only ones worthy of consideration is well taken. However, my point was really a legal one.
Nevertheless, Madison’s opinion is IMHO the starting point for interpreting the Bill of Rights.

I would agree only that it is a starting point. And which is more of a starting point, his views at the time of the framing of the B of R ("no national religion shall be established"), or his later, more cranky view of banning military and Congressional chaplains (I don't remember for sure, though, was he also opposed to military chaplains?)?


Moore’s open use of his religious beliefs at the very least creates the appearance of bias against those who do not share them.

Then why not go after him in the channels available (?) to attack his judicial ethics. If he can be proven to have unfairly and arbitrarily given a judgement (and, by the way, for the uproar over his Circuit Court plaques, I haven't heard any complaints of this) it seems to me there are avenues available for such complaints. It seems to me if there were even a few, but enough of them, that he would not long prevail against judicial discipline that might be available. The silence (at least to my knowledge) on that account I think speaks to the lack of seriousness of that charge. Frankly, IMO, I would like nothing more than to see that happen to him because, as I have noted before, I think he is a charlatan who is in this whole debate for his own political gain. But that is a separate issue from the Consitutionality of the issue at hand.


What if one of your insureds was an atheist and in front of him when he was a trial judge (and the only vote), and he refused to join in the prayers Moore started Court off with? Would you think that your insured would get a fair trial?

What I think is more important, though, and to the point, is whether that insured actually GOT a fair trial, and that should be apparent from the records of the trial such that it could provide the basis for appeal. BTW, for myself, though I'm not opposed to the Ten Commandments plaque I am opposed to the opening prayer. It smacks of wearing religion on the sleeves of his judicial robe.

Edited: Not because it is an establishment, but I think it is poor judicial behavior--it sets the wrong tone and for the reason you have cited, concern for a fair trial. Another objection that has occurred to me since this post is for the atheist in a jury trial who conscientiously refuses to bow his head--in the eyes of a jury who may be all for the judge's prayer, which I think goes to your anxiety over a fair trial.

As always, SLD, I enjoy the exchange. I hope all is going well for you. How go things in Bessemer? Anchors aweigh. I hope you're not ruining your reputation on this board being good friends with such a rabid conservative.

Gene/fromtheright


LDC,

If you answered "yes" to both of those questions, and yet you still can't see how a Taoist would be made to feel like a second-class citizen when the government endorses such a thing on the doorstep of their judicial branch... I'm really, seriously scared.

I understand but the Taoist's "feelings" do not an establishment indicate. There's nothing to be afraid of. I think you're watching too many atheist scary movies of Scalia and Thomas playing Frankenstein and Wolfman.

Um.. hello? Anyone home?

Was it worth the wait?

Edited to add smart-ass question to LDC.

[ December 03, 2002: Message edited by: fromtheright ]

[ December 04, 2002: Message edited by: fromtheright ]</p>

Living Dead Chipmunk

Fromtheright: Yes, it was.

Anyway, my point was "I am the Lord thy God, thou shalt have no other gods before Me", when put on the steps of a government institution, is a blatant attempt at establishment of monotheism. If Moore put such a thing on the front lawn of his home, that's him endorsing Christianity, not the government. When he puts it on the steps of the courthouse, it's the government telling you that you shall have no other gods before The Lord. And that's establishment.

fromtheright

LDC,

It's a good point but I think it is a far cry from an establishment of religion or even "respecting an establishment".