Poll: Plain Text, or Organic?

[Seldon2639]

You can really only pick one.

Do you want a plain-text reading of the constitution, giving the government only the powers specifically listed, and protecting only those rights specifically enumerated, and not protecting you at all from the actions of the state in which you live?

or

Do you want a reading of the constitution which includes organic changes and emanations? The right to privacy does not exist natively in the constitution, but is rather based on a "penumbra of rights" coming from the assumption that existing rights implied a right to privacy. And, of course, a plain-text reading would all but eliminate substantive due process (the reasoning by which the federal constitution is applied to state law).

So, do you want the government out of the business of regulating marriage and marijuana, but able to tap your phone no sweat, or would you like the government unable to tap your phone, but able to regulate a bunch of other things?

P.S: This was based on reading something today about 4-20 with people saying that the Controlled Substances Act violated the 10th amendment.

 

[PayNSprayBandit]

Well, first off all the government will always tap your phone, it's their job.
Second, I'm the kind of guy who should have the word Liberty tatooed on his forehead, so no I don't like government regulations.

But the most important question here is, "When we start opening up the Constitution to broader and broader interpretations, will our law makers stick to the original intent?"

BTW, This:

So, do you want the government out of the business of regulating marriage and marijuana, but able to tap your phone no sweat, or would you like the government unable to tap your phone, but able to regulate a bunch of other things?

feels like a false dichotomy.

 

[Inverse Skies]

I honestly think things are fine the way they are, I'm not going to argue with the system we seem to have in place.

 

[frank220]

i thought they settled this with loose and strict constitutional construction

 

[Seldon2639]

BTW, This:

So, do you want the government out of the business of regulating marriage and marijuana, but able to tap your phone no sweat, or would you like the government unable to tap your phone, but able to regulate a bunch of other things?

feels like a false dichotomy.

Sorry to bust back into my own thread, but I wanted to clarify. This is a dichotomy, but a true one. From an ideological basis, we can either look only at the rights and powers granted specifically in the constitution (a so-called originalist perspective) or we can adapt the meanings to more modern perspectives, and expands rights based on extrapolation. Justice Scalia is an originalist, Justice Souter allows for an organic reading. Find me the last major case where they sided on the same side.

i thought they settled this with loose and strict constitutional construction

That's the point of the question. A loose constructionist is one who would agree with an organic reading, a strict constructionist is one who would agree with a plain-text reading. But that's just another way to define the terms, not a "settling" of the issue at hand.

 

[PayNSprayBandit]

I honestly think things are fine the way they are, I'm not going to argue with the system we seem to have in place.

It's not as definite as all that. These decisions are made by the Supreme Court, a group of people that is always changing. So, it's is important to decide how you feel on this so you know who to support when it comes time to pick a new justice, because there's no certainty as to how each one will address this.

 

[PayNSprayBandit]

This is a dichotomy, but a true one. From an ideological basis, we can either look only at the rights and powers granted specifically in the constitution (a so-called originalist perspective) or we can adapt the meanings to more modern perspectives, and expands rights based on extrapolation. Justice Scalia is an originalist, Justice Souter allows for an organic reading. Find me the last major case where they sided on the same side.

I agree with your original premise; it's your conclusions about their consequences, I find incongruous.

.

Last,

Sorry to bust back into my own thread, but I wanted to clarify.

it'd be weird if you didn't.

 

[PayNSprayBandit]

i thought they settled this with loose and strict constitutional construction

What do you mean settled?

 

[Seldon2639]

I agree with your original premise; it's your conclusions about their consequences, I find incongruous.

That's fair. I was perhaps less than complete in my point. The same loose constructionism that allows for privacy rights also allows for government regulation of marijuana and marriage (the former through interstate commerce, the latter through full faith and credit). Truly strict constructionism would eliminate the former without eliminating the latter. You can pick a middle ground and try to pick and choose, but that's a bit of a cop out.

 

[frank220]

i thought they settled this with loose and strict constitutional construction

What do you mean settled?

well the ideas were set out, people took their stances and went on as average. even 200 years ago this wasn't a huge issue.

 

[Seldon2639]

i thought they settled this with loose and strict constitutional construction

What do you mean settled?

well the ideas were set out, people took their stances and went on as average. even 200 years ago this wasn't a huge issue.

In the sense that no one questions the definitions of loose and strict constructionism, you're right. In the sense that we've somehow resolved the debate, not really. Anytime a case goes the the Supreme Court, or a Supreme Court Justice is appointed, the two sides bang the war drums. And people still argue it in personal lives and classrooms across the country. I don't think we'll solve the question here, but we're just trying to spark some discussion.

Maybe I'm hypersensitive, but I read some measure of "repeat, noob, use the search button" in your post

 

[PayNSprayBandit]

I agree with your original premise; it's your conclusions about their consequences, I find incongruous.

That's fair. I was perhaps less than complete in my point. The same loose constructionism that allows for privacy rights also allows for government regulation of marijuana and marriage (the former through interstate commerce, the latter through full faith and credit). Truly strict constructionism would eliminate the former without eliminating the latter. You can pick a middle ground and try to pick and choose, but that's a bit of a cop out.

The previous wording sounded as if you were saying the first choice gave us restrictions and the second just gave us more. I was like come on man, there's got to be an option with freedom.

So, having cleared that up, my original concern still remains. In addition to all the good that could come from a loose interpretation, isn't there a lot of danger as well?

As for the cop out, well, that's what judges are for; but there's no shame in being a moderate. People who jump to extreme points of view are usually people who just don't want to think about things too much.

 

[Seldon2639]

I agree with your original premise; it's your conclusions about their consequences, I find incongruous.

That's fair. I was perhaps less than complete in my point. The same loose constructionism that allows for privacy rights also allows for government regulation of marijuana and marriage (the former through interstate commerce, the latter through full faith and credit). Truly strict constructionism would eliminate the former without eliminating the latter. You can pick a middle ground and try to pick and choose, but that's a bit of a cop out.

The previous wording sounded as if you were saying the first choice gave us restrictions and the second just gave us more. I was like come on man, there's got to be an option with freedom.

So, having cleared that up, my original concern still remains. In addition to all the good that could come from a loose interpretation, isn't there a lot of danger as well?

As for the cop out, well, that's what judges are for; but there's no shame in being a moderate. People who jump to extreme points of view are usually people who just don't want to think about things too much.

There's a lot of danger to either, in honesty. Strict constructionism both limits the powers of the government, but also limits the rights held against the government. Under a strict constructionist model, there have been arguments that the government cannot ban school prayer, or even state-sponsored religious icons. Speaking as an atheist, this worries me.

On the other side, loose constructionism allows for the government to regulate a lot more behavior, but grants us more rights against it. Both are balance in that way. The best of both worlds might be to have a system where the government can regulate least, and we have the most rights, but that'd be an oppressively long Constitution. It'd have to be written like computer code.

Moderation is good, but fundamentally still sided. I've yet to meet a person who was completely moderate. Especially on this issue, it's impossible to believe something in between "the Constitution should be read as written" and "the Constitution should be read as makes the most sense for current circumstances". To make any concessions to greater rights than granted in the text, or more government power, is to believe in the latter (no matter how few those concessions are).

 

[Inverse Skies]

It's not as definite as all that. These decisions are made by the Supreme Court, a group of people that is always changing. So, it's is important to decide how you feel on this so you know who to support when it comes time to pick a new justice, because there's no certainty as to how each one will address this.

Alright then, I'd rather have the government regulate and restrict things such as illict drugs but be unable to tap my phone due to personal reasons. Its like how here in Aus they're starting to think of releasing patients private data in order to root out Medicare fraud by doctors. I'd rather not have my patient data revealed in court say, or available for someone else to look at. Hence this sort of thing I'd like to see the government out of, but other things I don't mind them taking control of.