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Originally posted by: ken2v
The point is, "intent" is a bouncing ball, and it tends to bounce the direction of an individual's personal philosophy. Courts ruling in favor of gay marriage is right in line with FF "intent" to liberals, while the righties will scream activism. Abortion? Busing? National health care? Japanese internment? Limits on presidential terms. Banning booze and unbanning it? It is absurd to say the FF had a specific intent in mind that would not or should not evolve over time. Hell, the Constitution was amended 10 times right out the chute, and then another 17 since; the damn thing INSTITUTIONALIZED slavery, fer crissake. And some of our most significant SC rulings came out pretty damn early, clearly interpreting what the FF did/did not "intend."
Opinions can and should differ. It is just laughable to assume there is only one way to rule based on archaic writings and comments based on -- as hoops himself says -- now-archaic philosophies.
DonDiego respectfully disagrees. DonDiego asserts that the intent of the writers is a valid consideration in interpreting the application of the Constitution.
The Constitution is not an inconsequential document. The Founding Fathers were earnest gentlemen who took the writing of the Constitution seriously.
DonDiego has no doubt every statement was written with an intent in mind, i.e. that the writings would have the consequences which these men intended.
Consideration of intent may not be easy or definitive. F'rinstance, there may be no documentary evidence of any writer's intent. Or there may be several intents documented possessed by different contributor's to the Constitution, or even different intents possessed by a single contributor.
And consideration of intent does not assure accuracy. As ken2v asserts, different individuals may interpret intents honestly but differently, . . . or they may misinterpret them, . . . or they may misinterpret them intentionally to support an opinion already held.
Nonetheless, the above reservations do not render consideration of intent meaningless. Where intent is clear it should be a significant consideration. Where it is not clear whether by honest interpretation or intentional mischief, it will have less significance.
[n.b. DonDiego recognizes judicial interpretation is not a precise science and not, necessarily, an honest one. Judges can intentionally misinterpret the Law and the Constitution out of prejudice or for self-aggrandizement or even to damage the authority of the document. Such behavior is odious, . . . but it is a reflection of deficiencies in the process of electing/selecting judges not a condemnation of consideration of intent in interpreting the Constitution. DonDiego opines Justice Ginsberg is mistaken in dismissing such consideration.]
Consider ken2v's examples:
__Gay Marriage. So far as DonDiego knows the Founding Fathers did not consider sexual preference in the Constitution, . . . so intent is absent. At the time of the Founding Fathers laws against homosexuality were the norm; homosexuals could not marry. So far as DonDiego knows no Federal Judge has discovered a Constitutional Right to same-sex marriage, deferring to State Court rulings on the matter. So far.
__Abortion. Again the Founding Fathers did not mention abortion in the Constitution. Abortion was not uncommon at the time of the Founding Fathers. And again, Federal Judges usually deferred to State Laws on the issue. Until Roe v Wade in which a "right to privacy" was cited as the rationale.
__Busing. The Founding Fathers did not discuss busing in the Constitution, . . . nor in the 13th Amendment.
__National Health Care. The Founding Fathers did not discuss National Health Care in the Constitution. The Supreme Court has ruled the Health Care for America Plan constitutional. DonDiego expects socialized one-payer national health care is inevitable.
__Japanese Internment. DonDiego would've supposed that the un-constitutionality of this process would have been found somewhere in Amendments Four through Nine. But it wasn't; citing the exigencies of war, the Supreme Court upheld the internment in Korematsu v US. The ruling was later reversed.
__Limits on Presidential Terms. Not in the Constitution; installed by the 22nd Amendment.
__Prohibition of Alcohol. Not in the Constitution; installed by the 18th Amendment; removed by the 21st Amendment.
In summary on consideration of intent:
__There is no mention of Gay Marriage, Abortion, Busing, or National Health Care in the Constitution; thus there is no intent to be considered. This does not mean the Constitution does not apply, just that the Founding Fathers' intent is not available.
__Presidential Terms and Prohibition were achieved through Constitutional Amendment, so the Founding Fathers' intent has no bearing. Whatever the Founding Fathers intent, the Constitution was changed.
__Japanese Internment. DonDiego says: based on the Constitution and based and on documented opinions of the intent of the Founding Fathers regarding imprisonment, this procedure is unconstitutional. Nonetheless, it was ruled constitutional, but later reversed on the grounds of "racial bias".
So, only one of the issues involved intent, . . . and that decision was reversed.
DonDiego supposes similar "wartime considerations" might well trump the Founding Fathers' intent, if internment ever resumes. DonDiego counsels the reader to avoid internment if possible, . . . even if it is ruled constitutional.
DonDiego also counsels American-citizen readers to avoid drone strikes, . . . even if the White House orders one. [As far as DonDiego knows, President Obama has no knowledge of DonDiego; DonDiego suspects President Obama would not like him.]
Stuff happens.
On Firearms.
There's lots of documentation pertaining to the Founding Fathers' intent with regard to the "right to bear arms". It is clear that the Founding Fathers did not intend to restrict firearms ownership to members of a militia, . . . or restrict their use to sport-shooting and hunting. The intent was firearms for personal self-defense and defense of the Country (in a militia). Many Founding Fathers added defense against a tyrannical government as well within their writings.
The reader can look it up, . . . and make up his own mind, . . . or he can believe whatever he wants. Machts nichts to poor old DonDiego.
As ken2v says: "Opinions can and should differ." DonDiego says: "Opinions can differ, and some pr'bly should differ."