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14th August 2022, 06:48 PM | #1 |
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Interpreting the constitution and your politics
This keeps coming up a lot that by arguing the constitutional positions I do that I'm defending the bad acts done by people like Trump. In general, I argue that the conservative/Republican constitution. But it isn't a conservative value.
Liberals generally believe the liberal constitution and that it a good thing. Conservatives believe the conservative constitution and that is a good thing. I believe the constitution is conservative and that is a bad thing. But for some reason, most people seem to think the constitution is good enough and favors their positions which produce good. And I don't understand how so many arrive at that position. Americans don't generally go around thinking Juche is aligned with their political philosophy and it is Kim jong Un is perverting it. It reminds me of the phrase, "isnt it convenient that you were born in the country where the majority of the population belongs to the one true religion." It makes less sense that progressivism aligns with a 250 year old document than a conservative one. At least conservatives can point to their judges value women and minorities as lesser citizens just like the voters for the constitution did. |
15th August 2022, 01:38 AM | #2 |
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Conservatives do NOT point at the actual Constitution, but an imaginary version of it they tell everyone is the REAL TM one.
Their perversion of the Constitution's concept of Separation of Church and State is a glaring example. |
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15th August 2022, 02:01 AM | #3 |
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15th August 2022, 03:02 AM | #4 |
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15th August 2022, 03:21 AM | #5 |
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That might be an argument if Conservatives didn't use contemporary material like the Federalist Papers like a buffet and potluck, picking only what they want and bringing their own ideas to the table.
It is factually false to claim that Conservatives have a more accurate interpretation of the Constitution than Liberals do. |
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15th August 2022, 03:47 AM | #6 |
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15th August 2022, 04:10 AM | #7 |
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Sure. Roe v Wade.
Isn't it convenient that most people think the constitution supports whatever position they think is good? What percent of people have a stance on abortion and a stance on the constitution that is the position of the opposite party? I think abortion is clearly a states rights issue, even though my preferences align more with roe |
15th August 2022, 05:25 AM | #8 |
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It's pretty simple actually. Abortion, like a lot of other issues, isn't explicitly mentioned by the Constitution. So to support your position, you have to look at more general parts of the Constitution and claim that abortion is covered under that section. Maybe you find something and claim it's covered, or find something else and claim it's prohibited. Or you find nothing relevant and throw it to the states to decide. It's all a matter of interpretation, which of course is heavily influenced (if not completely determined) by how you personally feel about the subject.
As far as abortion being a states' rights issue, I can sort of see both sides. Certainly in some states the majority finds abortion repugnant, so in the interest of democracy a case can be made that they should be able to decide for themselves whether or not it should be legal there. On the other hand, it is utterly ridiculous that one state will throw someone in jail for doing something that's 100% legal in another. I don't think it's healthy to have that kind of inconsistency across America. And ultimately it's probably going to be detrimental to certain states, since the educated and affluent will probably tend not to want to locate there if they don't have the same freedoms offered elsewhere. |
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15th August 2022, 05:32 AM | #9 |
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I've actually met a decent number of people who are against abortion personally but are reliably in favor of it being a constitutional right.
As to whether someone's view on the legality matches their view on the constitution, that seems almost a tautology. Their understanding of the constitution likely shaped their view. |
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15th August 2022, 05:42 AM | #10 |
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So that would not describe what I'm referring to. The conflict wouldn't be between a personal value and what they think is the better policy. Those people just seem to think it should be a constitutional right because the benefits outweigh the costs.
The common thread would be if most of these think that Roe was correct....very convenient that the position they think has greater benefit happens to be the correct constitutional interpretation. |
15th August 2022, 05:43 AM | #11 |
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15th August 2022, 05:58 AM | #12 |
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My peeve is what I call "word search pseudo legal scholars" who upon not finding words like "abortion" or "espionage" in the Constitution assume the document cannot address the issue and conclude that the matter is left to the state governments.
To these limited thinkers it is unimaginable that the right to make one's own medical decisions is a privacy right protected by the 9th amendment. Indeed these poor folks don't realize that the 9th amendment wrecks most of their little anal retentive, controlling theory To these short sighted folks the Constitution's charge to Congress and the President to protect the nation from foreign interference can't include espionage laws because they can't find the words spy or espionage in the Constitution. |
15th August 2022, 06:06 AM | #13 |
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I'm not sure I understand your question. The Constitution should override personal feelings. I personally feel neo-Nazis should not be allowed to publish their crap in public, but agree that it's protected by the Constitution and thus am willing to accept it. What I was talking about were the less defined issues not explicitly mentioned by the Constitution, where one has to generalize and interpret to determine whether or not the issue is protected. Feelings no doubt play a critical role in that interpretation, but ultimately it's the Constitution that decides, not feelings. Otherwise there would be no minority rights.
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15th August 2022, 06:10 AM | #14 |
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15th August 2022, 06:15 AM | #15 |
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15th August 2022, 06:20 AM | #16 |
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That isn't what the words of the ninth amendment address.Here is the text as a reminder
Quote:
(ETA: I wish the 9th amendment actually did the thing you wanted it to do) |
15th August 2022, 06:23 AM | #17 |
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You have it exactly backwards, Bob.
Read a little history and get back to us. |
15th August 2022, 06:26 AM | #18 |
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15th August 2022, 06:30 AM | #19 |
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You are all turned around, Bob.
The word search pseudo scholars must face the question of whether abortion rights may be considered to be among the unenumerated rights "retained by the people" which the 9th Amendment was specifically written and ratified to protect. |
15th August 2022, 06:33 AM | #20 |
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Then they failed to protect it by only banning the use of the enumeration to deny those rights while leaving other reasoning on the table.
You seem to be reading a generalized protection for unenumerated rights (again, something that would be good to have) when the 9th amendment text is far more limited. |
15th August 2022, 06:37 AM | #21 |
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15th August 2022, 06:42 AM | #22 |
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The 9th amendment wouldn't ban attempting the enumeration of unenumerated rights. It restricts only the use of the enumeration of rights in the constitution to do that
You haven't even grappled the text of the amendment. If I use a method to deny a right that is not based on the enumeration of rights in the constitution, how does that violate the 9th amendment? Isn't there a legal principle that an express reference to one matter excludes other matters? Expressio unius est exclusio alterius? |
15th August 2022, 06:52 AM | #23 |
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Latin phrases won't change the fact that now you are, in effect, arguing that an unenumerated right isn't a right until it is enumerated or some how bolstered by an enumerated right.
This tortured logic is exactly what the anti-Federalists feared. You are trashing privacy rights faster than any despot might imagine. |
15th August 2022, 07:01 AM | #24 |
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15th August 2022, 07:07 AM | #25 |
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I think you are misinterpreting it.
At the time the constitution was ratified, there was a fear that if it included a bill of rights then only those rights would be protected and other rights would not exist. That is why the 9th amendment was included when the bill of rights was added to the constitution. It says that if the people retain other rights then they still retain them. The key is "retained". The power to make laws for abortion was a state power and there was no indication that the people had the right to abortion. Some might say that this is "originalist" but the right continued to not exist for a long time after the constitution was ratified. I feel that this is more a 10th amendment issue. The power to make laws on abortion is not delegated to congress nor prohibited to the states and the SC is not supposed to be making laws. But they did in the case of Roe vs Wade. OTOH once having decided that abortion is a right, it seems unconstitutional to rule that the right doesn't exist anymore. |
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15th August 2022, 07:11 AM | #26 |
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Bob, your argument is also that an unenumerated right has to bolstered by an enumerated right.
In so doing you wreck your own argument since the right to one's privacy is already enshrined in other amendments. You spun the web not me, Bob. |
15th August 2022, 07:17 AM | #27 |
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I have often found that 'BobTheCoward' often has incorrect ideas on the US Constitution even though he has claimed to have read the US Constitution many times.
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15th August 2022, 10:52 AM | #28 |
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Some folks "attend" questionable law lectures via zoom and such.
These lecturers like to posit ideas like how the 14th amendment isn't real and how the federal government has no authority outside D.C. The lecturers like to spout a lot of law maxims in latin (sound familiar?) and pretend they not only apply but trump statutes and the Constitution. Earlier in this thread we heard that a maxim changes the clear meaning and intent of the 9th amendment. Our friend Bob started this thread with the idea that people tend to interpret and misinterpret the Constitution according to their politics. I'd suggest that the reality is that the document allows the government and the nation such flexibility that our society can act across most of the political spectrum and not do the unconstitutional thing. |
15th August 2022, 11:01 AM | #29 |
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What many people (or their online personas) don't get or more often pretend to not get is that philosophy bows to practical reality, not the other way around.
It's impossible to create a perfect system in the world, and that's exponentially more true when those pesky "humans" get involved. The whole "You're not morally/intellectually honest and pure enough until you are slavishly devoted to various arbitrary philosophical systems to the point they are useless" routine that has been the core of a certain someone's character for over a decade now is just a form of solipsistic tyranny, being held hostage by categorizations WE MAKE UP. |
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15th August 2022, 11:11 AM | #30 |
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Hence the Necessary and Proper Clause of the Constitution.
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15th August 2022, 08:38 PM | #31 |
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That is absolutely true. Since the government and courts hate individual rights, the bill of rights has been interpreted into oblivion.
Double jeopardy? No problem. Call it the "separate sovereigns doctrine" and you can be charged repeatedly for the same crime. Can't be forced to testify against yourself? No worries, just change the words to "self incrimination" then a simple derivative immunity renders this clause void. Secure in your own possessions? Easy. Just charge the property with a crime instead and you don't need any process whatsoever to take the property away from its owner (SERIOUSLY???). |
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15th August 2022, 09:25 PM | #32 |
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15th August 2022, 09:58 PM | #33 |
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"The process by which banks create money is so simple that the mind is repelled. Where something so important is involved, a deeper mystery seems only decent." - Galbraith, 1975 |
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16th August 2022, 06:40 AM | #34 |
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This isn't unusual. Reading the document itself with no reference to extraneous sources such as caselaw and history is going to lead one to ideas that are somewhere between unworkable and stupid because it's mostly a statement of general principles. There are a lot of people out there doing that.
We've spent 200+ years developing an understanding of how to apply these general principles to everyday life. People who just pick up what amounts to a glorified pamphlet and decide they have all the answers are, to put it as gently as possible, oblivious self-important morons who, in general, are the cause of much of the world's evil. |
16th August 2022, 01:25 PM | #35 |
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Yeah, there's an old YouTube of Col. Jeff Cooper, the famous firearms instructor, giving a lecture at some AMA-civic meeting. After his prepared speech an attendee asked why the evil liberals didn't recognize that the full faith and credit clause of the Constitution magically forces blue states to accept the less restrictive gun laws of the red states.*
Specifically it was asked if one can conceal carry in one's home state, why can't one do so when one visits California? Cooper didn't know what the hell the law was about with in that regard and just puked up some verbiage about a lot of people not knowing what the Constitution is about. Cooper didn't know that the clause means that one state must enforce a judgment by a court in another state even if their enforcing court otherwise disagrees with the result. The clause does not allow one state to violate another state's sovereignty, which would be the case if my state, Kentucky, could dictate gun law to California. . . or wise versa. *https://www.youtube.com/watch?v=g3ABHVJwbRY 32:30 |
16th August 2022, 01:35 PM | #36 |
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Things aren't created for the sole purpose of being stress tested to see when they break, even in things like law and legality where find limits is part of the system.
Remember back in the 80-90s (and still pops up even to this day) where the secondary bad guy in every cop movie was the sleazy liberal lawyer who gets the obviously evil bad guy off.... *dramatic pause* on a technicality. Okay we don't need to develop an actual real world version of that to keep the Constitution strong and flexible. There reaches a point where "Trying to find the weakness in something" and "attacking it" becomes the same thing. |
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19th August 2022, 10:40 PM | #37 |
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Yes, a lot of the constitution is necessarily subject to interpretation. The problem is passages whose meaning seems abundantly clear also get subject to the same sort of interpretation - ie have their meaning changed. (See the examples I gave above). When the SC adopts a Cheshire cat attitude to the constitution, you don't have a constitution.
In the original Roe vs Wade example, if a right to privacy or bodily autonomy is retained by the people then the SC should have just said "no, you can't legislate against abortion". Instead, they created "trimesters" with separate rules about what states could legislate during each trimester. In doing so, they acted as a legislature instead of a court. |
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20th August 2022, 04:00 AM | #38 |
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The constitution failed to put in very many human rights. It's primarily set up to weigh the power of the feds and states. This leaves the federal gov't ancient and the states can be more modern, but often are not.
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20th August 2022, 10:23 AM | #39 |
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Abortion was not uncommon during the colonial period. It was socially frowned on, but not illegal until after several decades under the constitution.
Besides which, various areas of federal and state laws seem to otherwise consider health care decisions to be not just generally private, but deeply and specifically private. But we have states saying citizens get to pry into others' private lives and drag them into court to publicly expose them and use state power to punish them. |
20th August 2022, 01:59 PM | #40 |
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Pareidolia combined with confirmation bias?
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