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Alyosha
10-04-2013, 08:26 AM
I have issues with thread deviation and organization of thought, and figured that I would create this thread so that when @jillian (http://thepoliticalforums.com/member.php?u=719) and I begin to derail another thread with our back and forth dialogue on the Constitution we can come here and not ruin someone's efforts to create a linear dialogue on their chosen subject.

The Constitution, or our "supreme law of the land", has two major schools of thought associated with it, that of the "originialists" and that of the "living constitution".

There is not one political leaning associate with each, although people would tell you that liberals are for a living constitution. I'm a classical liberal, however, that is an originalist not because I feel it is "perfect", but it is the best method we have for preventing an authoritarian, unaccountable-to-the-will-of-the-people "police state". Libertarians trend towards originalism and can make an argument for gay marriage, abortion, drug laws, etc even from this approach.


Originalism

The Framers of our Constitution created a government not just for that time and era, but for "ourselves and our Posterity." We know from their subsequent writings in the Federalists Papers that the concept of "we the people" was to be not only a statement of their generation but future generations. When know that when they said they wished to "preserve" the government for not only themselves but their "posterity" they believed they were giving us a gift of federalism.

Their belief, and the theory's of originalism all culminate to support this; that the government should always be accountable to the will of the governed was thoroughly woven throughout the Constitution. What the Founders wanted was something different than anywhere else in the world and that was a government that was accountable to the people, so that they would be in charge of their own lives and retain human dignity and individual liberty.

From the Declaration of Independence to the Bill of Rights, our less than perfect founders wanted to put forth philosophies that were so great that they could pull man along in its wake and change the course of the nation and their own frail characters. In short, they wanted to create a perfect document that would supersede their own personal and acknowledged frailties.

To our founders, liberty and the thirst for it is a fundamental aspect of human nature. Therefore, originalism seeks to preserve with reverence the "political prosperity" of the Constitution, trusting that the tools within it shall enable us and future generations the ability to correct the frailty of man and errors made due to this frailty.

I believe the strongest case for originalism can be made from the fact that only this vein of legal thought actually limits the power of government and constrains it from authoritarian oppression of the people's will.

The Founders were quite emphatic in their desire to constrain government in order to preserve liberty that they purposefully regimented the federal government to be puppets of the Constitution and of the people, not the puppet master.

In all free States the Constitution is fixed and as the supreme legislative derives its power and authority from the constitution it cannot overleap its bounds of it without destroying its own foundation. ~ Samuel Adams

^ For @Ethereal (http://thepoliticalforums.com/member.php?u=870)

Why many **cough cough** lawyers do not like this interpretation is mostly because originalism limits the power of the judiciary, therefore asking a lawyer to be an originalist is like asking a banker to vote for laws that limit interest rates.

Originalism prevents the appellate courts and the SCOTUS from asserting its will over that of institutional bodies whose purpose is to create laws in accordance with the will of the public.

It was Chief Justice John Marshall, who affirmed this when he stated that the frames of our constitution were not just constraining the legislative and executive bodies, but "as a rule for the government of courts". From Marbury v. Madison:


Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if theywere to be used as the instruments, and the knowing instruments, for violating what they swear to support!

Lawyers are not priests. Lawyers are not even necessarily moral people. We are not trained to be any of these things because, oddly, if you have a moral code you may not be able to impartially do your job as an attorney.

Therefore, to place legislative decisions involving spirituality or spiritual concerns, moral concerns, and philosophical concerns into the hands of attorneys is no different than shoving a scalpel in our hands.

Morality is not our instrument. The law is our instrument.

To quote Scalia (http://www.law.virginia.edu/html/news/2010_spr/scalia.htm):




“Ultimately it is the judges’ call,” he said. “Figuring out the meaning of legal texts is judges’ work.”
Originalism is not a guarantee against judicial abuse, Scalia admitted.


“But originalism does not invite him to make the law what he thinks it should be, nor does it permit him to distort history with impunity,” he said. The honest originalist will sometimes or often reach results he does not personally favor. “All of this cannot be said of the constitutional consequentialists.


“If ideological judging is the malady, the avowed application of such personal preferences will surely hasten the patient’s demise, and the use of history is far closer to being the cure than being the disease.”



Originalism is not results oriented, and that is a good thing. It has no pursuit, it is impartial.

Living Constitution (http://en.wikipedia.org/wiki/Living_Constitution)

From wiki:


The Living Constitution, also referred to as loose constructionism, is a concept in United States (http://en.wikipedia.org/wiki/United_States) constitutional interpretation (http://en.wikipedia.org/wiki/Constitutional_interpretation) which claims that the Constitution (http://en.wikipedia.org/wiki/United_States_Constitution) has a dynamic meaning or that it has the properties of a human in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.[1]

(http://en.wikipedia.org/wiki/Living_Constitution#cite_note-1)

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist (http://en.wikipedia.org/wiki/Pragmatism) view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary.[citation needed (http://en.wikipedia.org/wiki/Wikipedia:Citation_needed)] The second, relating to intent (http://en.wikipedia.org/wiki/Original_intent), contends that the constitutional framers (http://en.wikipedia.org/wiki/Philadelphia_Convention) specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.[citation needed (http://en.wikipedia.org/wiki/Wikipedia:Citation_needed)] Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that allowing judges to determine an ever-changing meaning of the constitution undermines democracy. The primary alternative to the Living Constitution is most commonly described as originalism (http://en.wikipedia.org/wiki/Originalism).



In order to be respectful to my colleagues who are of this bent I chose Wiki because a) I don't feel like searching for the best definition and b) if I were to write it my personal opinion would be inserted, no doubt.

jillian
10-04-2013, 08:53 AM
I'll just point out, before I get back to work @Alyosha (http://thepoliticalforums.com/member.php?u=863), that Marbury v Madison was decided while the founders were still alive. The founders believed in slavery, made black people 3/5 of a person and denied women and anyone but landed gentry the vote. Take their document AND OUR CASELAW for what it is... because if we weren't supposed to rely on caselaw, they wouldn't have established us as a common law nation.

what process is "due" absent caselaw? what is a "taking" absent caselaw?

that's right... nothing.... just words.

originalism from people who think corporations are people (not you, but the "judge" who started this whole absurdity) is kind of amusing....

albeit destructive to everything that is important about our system of government.

the constitution is not some fundie's bible...

Chris
10-04-2013, 09:02 AM
OK, back to topic....

I would consider myself a textualist. You find the meaning of a document, be it Constitution or Bible, in the plain text.

Originalism, to me, means looking for the thinking of people in the past to support an interpretation. Textualism would allow for that, especially in documents immediately leading up to the text, but limit that use to derive the meaning of words at the time.

Living Constitutionalism, to me, is the opposite of originalism, and means looking for the thinking of people after the document was written to support an interpretation. It is unclear to me how some future thought would influence past thought. Thus I would favor originalism over living constitutionalism.

nic34
10-04-2013, 09:07 AM
Everything is subject to interpretation. ESPECIALLY the BIBLE in it's multitude of languages .

The constitution has already been amended.... of course it's "living" as it was intended.

Chris
10-04-2013, 09:18 AM
Everything is subject to interpretation. ESPECIALLY the BIBLE in it's multitude of languages .

The constitution has already been amended.... of course it's "living" as it was intended.



But shouldn't interpretation by subjected to the text itself?


Nice ambiguity argued conflating amending the document with living constitutionalism.

Alyosha
10-04-2013, 10:07 AM
I'll just point out, before I get back to work @Alyosha (http://thepoliticalforums.com/member.php?u=863), that Marbury v Madison was decided while the founders were still alive.

Post-Constitution so the point you're attempting to make is weak. What was Jefferson's option at the time? Could he have thrown out the court's decision or be careful in future appointments?

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277



The founders believed in slavery,

Untrue and unkind.

Benjamin Franklin:

http://www.archives.gov/legislative/features/franklin/

Thomas Jefferson:


Thomas Jefferson was a consistent opponent of slavery his whole life. Calling it a “moral depravity” and a “hideous blot,” he believed that slavery presented the greatest threat to the survival of the new American nation. Jefferson also thought that slavery was contrary to the laws of nature, which decreed that everyone had a right to personal liberty.

These views were radical in a world where unfree labor was the norm.


At the time of the American Revolution, Jefferson was actively involved in legislation that he hoped would result in slavery’s abolition. In 1778, he drafted a Virginia law that prohibited the importation of enslaved Africans. In 1784, he proposed an ordinance that would ban slavery in the Northwest territories. But Jefferson always maintained that the decision to emancipate slaves would have to be part of a democratic process; abolition would be stymied until slaveowners consented to free their human property together in a large-scale act of emancipation. To Jefferson, it was anti-democratic and contrary to the principles of the American Revolution for the federal government to enact abolition or for only a few planters to free their slaves.



http://www.monticello.org/site/plantation-and-slavery/thomas-jefferson-and-slavery

Had Jefferson freed his own slaves the location from where they were freed would have delivered them back into slavery the second they stepped over his own property's line. The Virginia slave code of 1705 guaranteed it (as it was adopted within the new laws of the state under both the Articles and the Constitution).

Jefferson instead worked to have slavery abolished in Virginia.

John Adams was against slavery.

Alexander Hamilton was against slavery.

etc

It's a nice progressive myth that belies legal and philosophical ambiguity. I fear the new fundamentalism of the progressives is just as lacking in moral ambiguity outside sexuality as that of the extreme Christian right, owning no philosophy to the context of it's time.




made black people 3/5 of a person and denied women and anyone but landed gentry the vote.


The legislative bodies of each state decreed this as did the Court at the time and for many, many years after. Therefore making this concept of the court as some sort of moral rescue raft a bit absurd.

Plessy vs Ferguson anyone?




Take their document AND OUR CASELAW for what it is... because if we weren't supposed to rely on caselaw, they wouldn't have established us as a common law nation.


Really? When you come back you can explain this one because we're not a common law nation, we used it as a starting point but we have our own system which utilizes and used to improve upon it.



what process is "due" absent caselaw? what is a "taking" absent caselaw?


You believe without caselaw we have no law?



that's right... nothing.... just words.


Exactly correct, just words. :)



originalism from people who think corporations are people (not you, but the "judge" who started this whole absurdity) is kind of amusing....


I agree. It was inconsistent with originalism.




albeit destructive to everything that is important about our system of government.


Many things coming from the court have been. I am of the opinion that America died when the Patriot Act was signed and my last bit of faith in the courts, truly this was what did it, was Florence v. Board of Chosen Freeholders.

We are now held hostage to a government owned by corporations and whose sole interest is to consolidate power to the central government and chain us to its will.



the constitution is not some fundie's bible...

I think I made the case that it is not. I'm not the one who sees government as a religion. I look at the Constitution as my cross and garlic against the soul suckers who wish to do me harm.

Alyosha
10-04-2013, 10:09 AM
The constitution has already been amended.... of course it's "living" as it was intended.

I don't mean to be rude, but amendments to the Constitution is originalist. I will be a legal snob to point that out though.

Alyosha
10-04-2013, 10:10 AM
But shouldn't interpretation by subjected to the text itself?


Nice ambiguity argued conflating amending the document with living constitutionalism.


I don't think he meant to conflate the two. He doesn't understand the law. jillian will be on later to help him out. It was an honest mistake of his.

Ethereal
10-04-2013, 10:26 AM
The founders believed in slavery...

This is a gross oversimplification of the issue of slavery in their time. In fact, one could argue that an intellectual and moral paradigm shift on the issue was underway at the time. The nascent abolitionist movement in the US was slowly but surely being embraced by intellectuals like Ben Franklin, Thomas Paine, Thomas Jefferson, Alexander Hamilton, John Adams, and George Washington. Ben Franklin was actually the first chairman of the US's first abolitionist society, for example. It simply isn't accurate or precise to generalize about slavery and the founding fathers like you just have.


...made black people 3/5 of a person...

Another imprecise generalization. The 3/5 compromise does not mention "black people" but makes a distinction between "free people" and slaves because not every black person was a slave. In Richmond, Virginia, for example, there were approximately 58,000 free blacks on the eve of the civil war (http://encyclopediavirginia.org/Free_Blacks_During_the_Civil_War) and they were counted as "whole people" per the language of the 3/5 compromise. In fact, the 3/5 compromise was designed specifically to reduce the south's representation in the federal government. It wasn't some grand philosophical statement on the personhood of black people, as you seem to believe.

Peter1469
10-04-2013, 10:47 AM
Everything is subject to interpretation. ESPECIALLY the BIBLE in it's multitude of languages .

The constitution has already been amended.... of course it's "living" as it was intended.

Does not the Constitution provide 2 methods to change it? Hint, one of them isn't just because.....

jillian
10-04-2013, 02:09 PM
Post-Constitution so the point you're attempting to make is weak. What was Jefferson's option at the time? Could he have thrown out the court's decision or be careful in future appointments?

do you recall any of the then living founders screaming that what the court did was an abuse of power?

the founders established a common law system. they'd have expected it to be interpreted. we're not a code state like france. so why would you treat the document in a way that diminishes it?


"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

except its our system of government.


Our judges are as honest as other men and not more so.

yes, which is why most (scalia and thomas aside) recuse themselves when there is an appearance of impropriety or a conflict of interest.

but i've seen some of the "constitutionalists" on these boards and i know for a fact i don't want *them* deciding what's constitutional.

again...what you want isn't the form of government under which we live and it isn't the form of govenment the founders devised. you want what you want, and that's fine, but then change our system of government, don't usurp the one we have.


The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

what a politician of his day said is really of no moment to me. it has no more meaning than the spouting off of an idiot like ted cruz saying something is unconstitutional.



Untrue and unkind.

and yet they allowed those things to exist...

and i'll just mention the name sally hemings....

they were what they were. and that's fine. but they don't run our government from the grave.

Chris
10-04-2013, 02:20 PM
Our legal system is a combination of common and civil law.

Interpretation in law doesn't mean change the meaning, it means apply it to cases brought before the court.

Alyosha
10-04-2013, 02:23 PM
do you recall any of the then living founders screaming that what the court did was an abuse of power?

Thomas Jefferson? John Adams? Samuel Adams? They were founders that thought it was total shit.

I cannot imagine Jefferson screaming, no. Scribbling angrily to John Adams, yes.




the founders established a common law system. they'd have expected it to be interpreted. we're not a code state like france. so why would you treat the document in a way that diminishes it?


They built upon the common law system.





except its our system of government.


Except that it was not at that time, and that is why Jefferson--that guy who was invited to actually write the Constitution but let Madison do it instead and advised him on it--said that it was bullshit.





yes, which is why most (scalia and thomas aside) recuse themselves when there is an appearance of impropriety or a conflict of interest.

Roberts, Sotomayer and Kagen helped write what piece of legislation that's in the news today?



but i've seen some of the "constitutionalists" on these boards and i know for a fact i don't want *them* deciding what's constitutional.


I could say the same for the living constitutionalists because you guys scare the shit out of me with your support of the NSA and NDAA and any other authoritarian tool Obama uses as long as its Obama.

But luckily for the country you and I are not the sole deciders, as Bush would say.




again...what you want isn't the form of government under which we live and it isn't the form of govenment the founders devised. you want what you want, and that's fine, but then change our system of government, don't usurp the one we have.


It is exactly that form of government the founders devised. The Federalist papers and their letter back me up. I am changing absolutely nothing to affirm that.

You are just unhappy that younger people are swinging the other way again.



[quote]
and i'll just mention the name sally hemings....


Who by all accounts was fond of him. You realize that he took everyone to France and that some historians believe he did that to give them the opportunity to leave that he could not do in Virginia with the laws of that time, yes?

I love the lack of depth Democrats delve when they want to prove their point.

Just so you don't sally forth with this conclusion of yours in the future...had Jefferson freed his slaves, who were all related to his wife and his children, they would have been absorbed the second they left his property onto another slave holding estate.

This is why he tried to change the laws of the state so that he could free them and they remain free.

Alyosha
10-04-2013, 03:27 PM
Virginia Slave Law of 1723:

Negro and Indian slaves could not be set free except for meritorious service, which was to be so adjudged, by the Governor and Council. If slaves were freed without the approval of the Governor and Council, the parish Church wardens were to sell the emancipated slave a public auction. The proceeds were then to be applied for the use of the parish.

Only in death could slaves be freed so many slave owners in Virginia sold their slaves out of fear they would be killed. This lasted until the 1830's.

According to Miller's history, Jefferson freed all those that looked white enough not to be pursued and didn't report their emancipation until the following year.

This is my point about public school indoctrination. The whole story is not told. How could Jefferson have freed his slaves under this existing law, except to change it?

And did he try? Yes, he did @jillian (http://thepoliticalforums.com/member.php?u=719)

(approx 1770): “ I made one effort in (the Virginia legislature) for the permission of the emancipation of slaves,
which was rejected: and indeed, during the regal government, nothing liberal could expect success.” (published in
1821. ) (Jefferson, 1984, p5.)

1774: “The abolition of domestic slavery is the great object of desire in those colonies (America), where it was
unhappily introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary
to exclude all further importations from Africa…” (Jefferson, 1984, p115.)

1776: “(King George III) has waged cruel war against human nature itself, violating its most sacred rights of life
and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in
another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the
opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a
market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative
attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact
of distinguished die, he is now exciting those very people to rise in arms against us, and to purchase that liberty of
which he has deprived them, by murdering the people upon whom he also obtruded them thus paying off former
crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of
another.” -from TJ's draft of the Declaration of Independence. This paragraph was voted down by the
Congressional Congress. (Jefferson, 1984, p22.)


1778: “I brought a bill to prevent (the slave’s) further importation (to Virginia). This passed without
opposition, and stopped the increase of the evil by importation, leaving to future efforts its final eradication.”
(published in 1821.) (Jefferson, 1984, p 34.)



Actually Ethereal Codename Section and Green Arrow will appreciate this, as well, maybe even Chris


William and Mary is big on correct American history and we were forced to take classes that told the whole story for our general education credits.

Alyosha
10-04-2013, 03:49 PM
Oh, I forgot

When faced with the inability to emancipate them and only selling them, Jefferson replied:

1787: “This unwillingness (to sell slaves) is for their sake, not my own; because my debts once cleared off, I
shall try some plan of making their situation happier, determined to content myself with a small portion of their
labor.” (Miller, p57.)

http://millercenter.org/president/jefferson

TheInternet
10-04-2013, 04:09 PM
The text of the constitution should carry the same meaning throughout time. This is what the founders intended. They knew the idea that it could be "interpreted" differently from generation to generation would result in an out of control government.

Of course they also realized it would need to be modified in the future, so they left us two difficult avenues to pursue those changes.

Chris
10-04-2013, 06:02 PM
Funny how the amendment process does not include judicial fiat.

jillian
10-04-2013, 06:27 PM
Oh, I forgot

When faced with the inability to emancipate them and only selling them, Jefferson replied:

1787: “This unwillingness (to sell slaves) is for their sake, not my own; because my debts once cleared off, I
shall try some plan of making their situation happier, determined to content myself with a small portion of their
labor.” (Miller, p57.)

http://millercenter.org/president/jefferson


bummer that it's only partly true


Jefferson freed two men in his lifetime and bequeathed freedom to five men in his will. All were sons or grandsons of Elizabeth (Betty) Hemings (http://www.monticello.org/site/plantation-and-slavery/elizabeth-hemings). At least three others were unofficially freed, when he allowed them to run away without pursuit (Beverly Hemings, Harriet Hemings (http://www.monticello.org/site/plantation-and-slavery/harriet-hemings), and James Hemings, (http://www.monticello.org/site/plantation-and-slavery/james-hemings) son of Critta Hemings Bowles (http://www.monticello.org/site/plantation-and-slavery/critta-hemings-bowles)).A single paragraph cannot do justice to the issue of Jefferson's failure to free more than a handful of his slaves. Some of the possible reasons include: the economic value of his human property (at certain times, his slaves were mortgaged and thus could not be freed or sold); his lifelong view that emancipation had to go hand-in-hand with expatriation of the freed slaves; his paternalistic belief that slaves were incapable of supporting themselves in freedom and his fear they would become burden to society; his belief in gradual measures operating through the legal processes of government; and, after 1806, a state law that required freed slaves to leave Virginia within a year. Jefferson wrote that this law did not "permit" Virginians to free their slaves; he apparently thought that, for an enslaved African American, slavery was preferable to freedom far from one's home and family.


http://www.monticello.org/site/plantation-and-slavery/property

Green Arrow
10-04-2013, 08:19 PM
bummer that it's only partly true





http://www.monticello.org/site/plantation-and-slavery/property

I'll let Alyosha handle the full rebuttal, but why is Lincoln so adored by some liberals and blacks when he was himself a complete and total racist who didn't actually care about freeing slaves?

KC
10-04-2013, 08:39 PM
I'll let @Alyosha (http://thepoliticalforums.com/member.php?u=863) handle the full rebuttal, but why is Lincoln so adored by some liberals and blacks when he was himself a complete and total racist who didn't actually care about freeing slaves?

Lincoln supported the notion of black deportation because he thought that once freed, the former slaves would never be fully integrated into white society. Not to mention colonization of Africa by blacks wasn't a far fetched idea, the Republic of Liberia has already been established by this time.

lynn
10-04-2013, 08:45 PM
The Constitution is a beautifully written document with good intentions but failed to understand human nature that is incapable in their actions to abide by the rules of the constitution. If they had followed the rules, we would not have rich politicians or big government dictating everything we do that has stripped us of so many freedoms that over time no one realizes what they have lost.

We have ex CEO's and lawyers working in government which have no morals and could care less what happens to its citizens that it governs.

Green Arrow
10-04-2013, 08:56 PM
Lincoln supported the notion of black deportation because he thought that once freed, the former slaves would never be fully integrated into white society. Not to mention colonization of Africa by blacks wasn't a far fetched idea, the Republic of Liberia has already been established by this time.

I think you'll find from reading his words that it had a lot more to do with his idea that whites are inherently superior to blacks, than it did some semi-noble notion that that it would be the best thing for them.

Chris
10-04-2013, 09:04 PM
The Constitution is a beautifully written document with good intentions but failed to understand human nature that is incapable in their actions to abide by the rules of the constitution. If they had followed the rules, we would not have rich politicians or big government dictating everything we do that has stripped us of so many freedoms that over time no one realizes what they have lost.

We have ex CEO's and lawyers working in government which have no morals and could care less what happens to its citizens that it governs.



I think they foresaw this based on their knowledge of previous governments--see Federalist Papers--and they put together the best government they could come up with. But it's true, you just can't stop mother or human nature.

KC
10-04-2013, 09:39 PM
I think you'll find from reading his words that it had a lot more to do with his idea that whites are inherently superior to blacks, than it did some semi-noble notion that that it would be the best thing for them.

I don't disagree that Lincoln believed in the superiority of whites, but he saw deportation as the best thing for both parties since the two would never be able to coexist.

"Why should they leave this country? You and we are different races. We have between us a broader difference than exists between almost any other two races. Whether it is right or wrong I need not discuss, but this physical difference is a great disadvantage to us both, as I think. Your race suffer very greatly, many of them, by living among us, while ours suffer from your presence. In a word we suffer on each side. If this is admitted it affords a reason why we should be separated. If we deal with those who are not free at the beginning and whose intellects are clouded by slavery we have very poor material to start with. If intelligent colored men, such as are before me, would move in this matter much might be accomplished. It is exceedingly important that we have men at the beginning capable of thinking as white men and not those who have been systematically opposed."

http://www.jstor.org/stable/2713705

I am so not looking forward to having to pay for jstor when I graduate. It's worth it though, I use it fairly regularly.

Green Arrow
10-04-2013, 10:06 PM
I don't disagree that Lincoln believed in the superiority of whites, but he saw deportation as the best thing for both parties since the two would never be able to coexist.

"Why should they leave this country? You and we are different races. We have between us a broader difference than exists between almost any other two races. Whether it is right or wrong I need not discuss, but this physical difference is a great disadvantage to us both, as I think. Your race suffer very greatly, many of them, by living among us, while ours suffer from your presence. In a word we suffer on each side. If this is admitted it affords a reason why we should be separated. If we deal with those who are not free at the beginning and whose intellects are clouded by slavery we have very poor material to start with. If intelligent colored men, such as are before me, would move in this matter much might be accomplished. It is exceedingly important that we have men at the beginning capable of thinking as white men and not those who have been systematically opposed."

I see what you're saying, and I concur.


http://www.jstor.org/stable/2713705

I am so not looking forward to having to pay for jstor when I graduate. It's worth it though, I use it fairly regularly.

I've never heard of this thing.

KC
10-04-2013, 10:13 PM
I see what you're saying, and I concur.



I've never heard of this thing.

Jstor is by far my favorite online database of journals and other scholarly articles.

Green Arrow
10-04-2013, 10:16 PM
Jstor is by far my favorite online database of journals and other scholarly articles.

So I see. I'll have to peruse it. Thanks for the plug :)

Alyosha
10-05-2013, 07:40 AM
bummer that it's only partly true

That he allowed the slaves who were white enough to escape and not get caught to be free? Or do you mean the part where you pasted the paragraph that begins with "a single paragraph cannot do justice"...?

I understand that liberals don't like to read whole books and prefer to get their rhetoric from Democratic politico's but you might try reading book(s) on the subject. His life was long and his attitudes changed throughout it. Would it disappoint you or please your to learn that he did inherited slaves through marriage and death and that those he bought were related to slaves he owned? Would it furthermore surprise you to know that he sold all but those who were related to his wife (her father had spread his seed around)?

Perhaps, it was this realization that his wife was related by blood to the slaves which made him change his attitude by the time he made it to the House of Burgess and/or wrote the Declaration?

You are very harsh on a man @jillian (http://thepoliticalforums.com/member.php?u=719) who lived in an age where slavery was all around him and where it was as natural to own slaves as horses and yet tried repeatedly to have those laws repealed, first in his own state (where he was denied) and in the writing of the Declaration (where he was denied again). Do you blame all husbands throughout history for not fighting for their wives right to vote?

When your family and entire culture tells you that something is right and you still say it wrong, that is the mark of a good man.

As to the law of Virginia, something you seem to think except in this case reigns absolute, manumission in Virginia could only be had through permission of the governor and his council by meritorious service or death. Not only that but if they were freed by meritorious service their old masters were required to pay for their conduct out of the country, which many people did not have the money to do.


Paragraph 17 of the Act Directing the Trial of Slaves, Committing Capital Crimes; and for the More Effectual Punishing Conspiracies and Insurrection of Them; and for the Better Government of Negros, Mulattos, and Indians, Bond or Free stated that “No negro, mullatto, or Indian slaves, shall be set free, upon any pretence whatsoever, except for some meritorious services, to be adjudged and allowed by the governor and council, for the time being.”

The meritorious service in question was usually turning in other slaves that were considering rebellion.

So again, his ability to free his own slaves was extremely limited in his lifetime. He allowed the ones that looked white to just leave because no one would catch them, and the others he cared for or sold if they agreed. When the census was taken of his "family" in Monticello, instead of saying "8" he said "117", including those slaves that were related to him by blood. Not sure how many other rich white men of the south did that.


A paragraph does not do it justice. I was on target as a history double major and absorbed this stuff because I, like you, was a northerner who had been told literally a black/white version of the truth.

You should know from your own life experience and how the laws of this country work that things are always much more complex than that.

However, believing he was an evil slave owner with the ability to easily free all his slaves with a wave of his hand, that the world around him was just culturally like this one, that he and Sally did not love each other, that he did not try twice to have not just his slaves freed, but all slaves fits the narrative you need.

So...have fun with it, but just be prepared that the bar of judgment that you place on this applies to modern men, as well, who you feel are flawed but essentially good men, whom you try to plead for.

History's a bitch, I guess.

midcan5
10-07-2013, 01:53 PM
There's no such thing as Originalism, that's BS made up to justify a position in the present that may or may not be relevant to the case at hand. How anyone thinks we can read old farts who lived in simpler times and apply what amounts to our own interpretation of the old farts is just plain wacko.

Here's a originalist for you below. Read what he reads and listens to and then tell me is he a originalist or just a narrow minded biased old fool?

http://nymag.com/news/features/antonin-scalia-2013-10/ (http://nymag.com/news/features/antonin-scalia-2013-10/index5.html#)


"We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized... The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of the capitalists. The urban workmen are denied the right to organize for self protection, imported pauperized labor beats down their wages, a hireling standing army, unrecognized by our laws, is established to shoot them down, and they are rapidly degenerating into European conditions. The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of these, in turn, despise the Republic and endanger liberty." Populist platform 1892

Alyosha
10-07-2013, 01:57 PM
There's no such thing as Originalism

It's used among lawyers to differentiate among ourselves our position.

Chris
10-07-2013, 01:57 PM
There's no such thing as Originalism, that's BS made up to justify a position in the present that may or may not be relevant to the case at hand. How anyone thinks we can read old farts who lived in simpler times and apply what amounts to our own interpretation of the old farts is just plain wacko.

Here's a originalist for you below. Read what he reads and listens to and then tell me is he a originalist or just a narrow minded biased old fool?

http://nymag.com/news/features/antonin-scalia-2013-10/ (http://nymag.com/news/features/antonin-scalia-2013-10/index5.html#)


"We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized... The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of the capitalists. The urban workmen are denied the right to organize for self protection, imported pauperized labor beats down their wages, a hireling standing army, unrecognized by our laws, is established to shoot them down, and they are rapidly degenerating into European conditions. The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of these, in turn, despise the Republic and endanger liberty." Populist platform 1892



"There's no such thing as Originalism...Here's a originalist for you...." No wonder 99% of your posts are quotes of others.




...tell me is he a originalist or just a narrow minded biased old fool?

Example: "The newspapers are largely subsidized or muzzled". But you, midcan, have said the same about the media.

midcan5
10-07-2013, 02:01 PM
Chris, you missed the paradoxical irony of the quote, check the date. An Originalist, by their definition, when they look in the mirror what do they see staring back at them. Only themselves.


"It is time... to end the long-standing and unproductive methodological debate over 'originalism' versus 'dynamism' or 'evolution' and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers." Diane Wood

Alyosha
10-07-2013, 02:32 PM
Chris, you missed the paradoxical irony of the quote, check the date. An Originalist, by their definition, when they look in the mirror what do they see staring back at them. Only themselves.


"It is time... to end the long-standing and unproductive methodological debate over 'originalism' versus 'dynamism' or 'evolution' and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers." Diane Wood


You realize you're posting opinions, yes? You know what they say about opinions...but we'll go with your appeal to SMEs.

Would you not agree that a "J.D" makes someone an SME, I believe, by your standards of "appealing to experts"?

I believe in originalism for the very reason that we have an amendment process clearly defined. They were guiding principles to steer the country into a future with the most possible freedom, thus they said "for posterity". I've seen enough in the criminal system, changes in favor of government over citizens that I, now more than ever, believe in originalism.

Originalism is the only thing that keeps the government from encroaching on the privacy and independence of citizens to live their lives in peace.

My practice area is criminal defense. In the last four years more nonviolent people have been kidnapped by the state and thrown into jail with little to no protections because of how we've "interpreted" the Constitution. That's your "living" Constitution for ya.

Peter1469
10-07-2013, 03:04 PM
Clearly the concept of a "living" Constitution, is just a pretext for ignoring it.

Alyosha
10-07-2013, 03:05 PM
Clearly the concept of a "living" Constitution, is just a pretext for ignoring it.

Well said, sir, well said.

Chris
10-07-2013, 03:59 PM
Chris, you missed the paradoxical irony of the quote, check the date. An Originalist, by their definition, when they look in the mirror what do they see staring back at them. Only themselves.


"It is time... to end the long-standing and unproductive methodological debate over 'originalism' versus 'dynamism' or 'evolution' and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers." Diane Wood



paradoxical irony

Does that pleonasm even have meaning?


Another nice quote from someone like you who fails to understand the founders didn't lay down policies but principles by which to come up with policies. Also a quote from some who misunderstands interpretation as changing the meaning of the Constitution rather than applying it to cases.

Chris
10-07-2013, 04:00 PM
Clearly the concept of a "living" Constitution, is just a pretext for ignoring it.



Right, if you undermine the Constitution then you undermine the very foundation of the law. You devolve from rule of law to rule of man.