An Originalist point of view on Constitution Interpretation, and what influenced the Founding Fathers. Formerly www.discoveringthefoundingprinciples.com
Sunday, March 6, 2011
How well do you know our founding? Answers and Links
Take this short quiz and find out how well you know our founding?
Wednesday, March 2, 2011
Quick Thoughts: Free Speech must be protected, even when offensive.
Today the Supreme court handed down an 8-1 ruling that protests in conjunction with funerals is protected under the First Amendment.
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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Though what the protestors may say, and the message they convey may be of the most offensive and insensitive and done at the most inappropriate times, speech no matter how offensive, insensitive and ill-timed must always be protected. Standards of the protection speech in public must never have limits, except for the those that directly endanger the public, like screaming “fire” in a movie theater, or directly advocating the physical harm and immediate of someone. But no limits should ever be placed on the “decency” of speech because if limits are placed on it, it leaves the standards to the whim of man. If the standards of decency where left to what a person feels is “decent”, this leaves open the ability to limit speech of political nature. What one considers as essential political speech and something that needs to be brought to peoples attention, another may find indecent. Only one entity would have the ability to decide what is “decent”. By allowing government to decide what is decent, it opens the door to give government the ability to suppress or outright prohibit speech which is critical to government or policy.
The free expression of opinion should always remain absolute, subject to no test of decency. In this time of a very polarized electorate, neither side should be able to deem what of the opposing side is or is not “decent”. Only in an environment of the free exchange of all ideas can the people be the most informed, limiting any point of view is to deprive the people as whole of an avenue to, One: express their views, and Two: hear other or opposing views.
Speech can generate the full spectrum of emotions, and can be extremely powerful. We may enjoy hearing the good and what we like in speech, but remember this speech will be offensive or disagreeable to others. Wrongs cannot be righted if speech is limited, since many times when the wrongs of society are first addressed it was considered “offensive” to discuss it. A society can only be as just and free as its speech is, no matter how many it offends. When a society limits speech, it is limiting its own freedom, and also one of the most critical methods of correcting itself, by addressing the offensive things that occur in a society.
Thursday, February 24, 2011
Stare Decisis; Legitimate Precedence or Bad begetting bad.
A doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.
A simple internet search will turn up various different ways to define stare decisis, but all will follow the same basic principle in its definition, a doctrine of using what courts have ruled before on a similar case and apply it to a similar case. Stare decisis can be argued in many different ways from criminal and civil law, arbitration, etc., but the focus here will be only in regards to interpreting the Constitution in the Federal Court System, and the role it should play in determining what law is.
As an Originalist, stare decisis has legitimate use in not only the Supreme Court but inferior courts as well. But I also contend stare decisis is a doctrine that has no place in certain regards when determining if a law or case before the court is Constitutional. Being an Originalist an inconsistent application must be avoided in order to remain consistent in interpreting the Constitution across all cases and scenarios that may arise. So in order to do this, situations on stare decisis prudent use need to be recognized, and they way I do this is two fold:
- What court is reviewing the case.
- On what aspect of the case to apply it.
Wednesday, February 23, 2011
Were the Founders Originalist?
Were the Founding Fathers originalist, this is a question I get more often than most others, along with, “Were did Originalism come from?” or “Which Founder was an Originalist?”. The first thing that needs to be discussed is, what Originalism is. Justice Antonin Scalia describes it here in remarks to the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005 (What is Originalism and Original Meaning?). In his remarks Justice Scalia says the following:
Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.
He does not contend to be a “strict constructionist” and goes on to state, that he does not believe anybody should be. An Originalist is one who believes the meaning of the Law is what it was understood to be by those who adopted it, the people who ratified the provision in question. It is this group of people, whether in the Convention of the States in 1787-1789 on the Constitution, or the various bodies who ratified the 27 Amendments to the Constitution, that granted the permission to give power to government. Only the people and these bodies can cede power, it cannot be arbitrarily taken, and because only they can cede the power it must be understood, what power they in fact meant to cede to government, the Original Meaning of the provision in question. To sum up the basic foundation of an Originalist is, I put this way,
For all Originalist the basic beliefs are that the Constitution is the Authority in which the government operates, and is done by the consent of the People, and the people expect it to be followed. It is a binding contract of conduct between the legitimate power [the people] and the acting power [the government], as in all contracts it defines what the limits of it are.
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