The people who wrote and ratified the U.S. Constitution didn’t intend by so doing to abolish slavery or abolish the death penalty or give women the right to vote or to an abortion or to legalize same-sex marriage. But they did ban cruel and unusual punishment, and they did ban unreasonable searches. With the Fourteenth Amendment the people demanded equal protection under the law. So, it seems to me that the Founders understood that what was considered unusual and unreasonable in their time might not be considered so in future generations, and the idea that people should be treated equally under the law was firmly established under the conditions of amendment laid down by the Founders.
What would James Madison think was a reasonable search in this day and age? What would he make of a microprocessor in a telephone? What would Thomas Jefferson think about women voting? What would Samuel Chase or Benjamin Rush think about the abolition of slavery? Would John Jay agree that people have an inherent right to privacy that extends beyond searches of their persons and properties? What would Benjamin Franklin make of the pill and IUD’s?
The modern world would blow all of their minds and they would probably struggle to make sense of it. Computers, airplanes, satellites, space travel, modern hospitals, cars, nuclear weapons.
My point is that you can’t decide what is unusual and unreasonable based on what the Founding Fathers thought to be so. The death penalty used to be used in every country, now only a few rogue nations and the USA still subscribe to this barbarism. It’s certainly unusual if you think globally.
Likewise, in a day and age where airplanes can be converted into missiles and suitcases can contain radioactive bombs, what constitutes a reasonable search is different from when we rode horses and fired muskets.
There’s merit in trying to ascertain what the Founders intended the Constitution to mean, but that doesn’t mean that our understanding has to be the same. George Washington wanted a well-regulated militia but he couldn’t imagine a teenager gunning down two classrooms of first graders in less than five minutes. I think if Washington took a guided tour of the Pentagon and the Situation Room, his concern about having a well-regulated militia would go out the door. If he saw what happens on a regular basis in our schools, malls, and workplaces with gun violence, I think he’d be appalled. In his day mass shootings weren’t just unusual, they were impossible. I don’t think he’d believe that the NRA was being reasonable at all.
So, really, it doesn’t matter that the Founders didn’t endorse the abolition of slavery and the death sentence or gay marriage or abortion rights or female suffrage. They knew that standards would change and they provided us with a way to deal with that change. In some cases, we could amend the Constitution, in others we could pass new laws, and in still others judges would make rulings consistent with changing standards about privacy and human sexuality and crime and punishment.
We aren’t supposed to live in amber, stunted with the same moral sensibilities as 18th-Century men.
I have had conversations with some on the Right who literally think that the Constitution I s the word of God handed down like stone tablets to the founders. Literally think that the founders had divine insight that only those on the Right today can see. – with their divine insight that is lacking from those Godless masses/mobs on the Left/in the tyrannical majority.
Yes, God literally thinks they should have a gun. That’s why you never will talk sense to them.
Yes, I’ve often pointed out to people that about half the country believes that God handed down the 10 Amendments in stone tablet to Jefferson Davis on Rocky Top.
And that’s why being a Confederate is more patriotic than being a liberal, why original intent is the direct descendant of the Bible which is the literal truth, and why the principles of Ayn Rand in worship of a god of money and vengeance is the only true religion.
Further, the vengeance from the god of money has been outsourced to gun owners to enforce morality on all the heretics: non-whites, gays, sluts, people who can’t speak English without a foreign accent or have too many syllables, or vowels, or consonants in their names.
And they are a tough, proud people, clearly exceptional since they didn’t give up when the Germans bombed Pearl Harbor or when Saddam Hussein used those dirty bombs on the Twin Towers.
Thomas Jefferson Davis
as long as it’s Rocky Top that’s fine
The fact that the framers of the Constitution built into it a way to amend the Constitution shows that they knew times change and that the government should be able to respond to that. Otherwise, the government would be illegitimate.
Republicans believe that the government is illegitimate in and of itself, so it makes sense that Republicans read the Constitution differently than it was explicitly intended.
The fact that one Amendment cancels out another shows that the Constitution is supposed to change.
The thing is, learning is just a slippery slope to Socialism, comrades.
Given that support for capital punishment consistently polls at 60+%, and that polls in countries that have abolished the death penalty, such as Canada and the UK, suggest a disconnect between politicians who oppose it and citizens who are much more willing to consider it, I wouldn’t say that the death penalty is a relic completely untied to modern moral sensibilities.
And the Founder’s vision of America they enshrined in the Constitution was probably way ahead of many of their newly defined citizens understood or wanted. Leadership isn’t about playing to the prejudices of the lowest common denominator…
I believe that there are criminals who absolutely deserve the death penalty. Unfortunately our system of law doesn’t seem to be very good at identifying who they are. Arguments against capital punishment based on that have some merit, but in principle I do not reject the idea of the death penalty. And the correct response to false convictions is to do away with the abuses to the extent possible.
I also believe that clemency is merited in some cases.
The biggest problem with the death penalty is that it brutalises the people and government of the states that implement it, reducing them to a level only a little better than the criminals in the first place. It is only when you have lived in a country without a death penalty for many years that you realise its impact on societies that do have it.
That is a huge, as well as vague, generalization; it would seem impossible to demonstrate from a cause-and-effect standpoint; and in addition, it doesn’t address any of the specific points I made.
I suppose it would be consistent with the statement, “Norway is a less brutal country than the United States BECAUSE it does not allow the execution of somebody like Anders Breivik.”
OK. I can’t even parse that logically, but it is an opinion.
The United States is, in some ways, a more brutal country than Norway, but I do not see the cause-and-effect relationship ofthat with the mere acceptance of capital punishment. I do see a brutality, corruption, and callousness of American prosecution systems, which is connected with one of the points I made.
I agree and accept it is a generalization, and one which would require a major essay with links to empirical research to fully justify. The best I can offer for the moment is an earlier essay on how brutality becomes normalized in US society – The Caging of America
The fetish over the “original intent” of the Founders became prominent in the legal arm of the conservative movement around 35 years ago. This was the intellectual gambit for why “lib’rul” judicial rulings of the Warren Court (including Brown v. Board) were incorrect and illegitimate. The supposed idea was that seeking the intent of the Founders would restrain judges from not enshrining their own (lib’rul) policy preferences as (effectively permanent) constitutional doctrines. It was supposedly an objective doctrine of judicial restraint the judge was to impose on him/herself.
Well, we know what happened. As soon as “conservatives” took control of the federal Court(s), their ballyhooed “original intent” doctrine flew out the window and they were delighted to enshrine their own personal (i.e. conservative) policy preferences as constitutional doctrine, in precisely the fashion they claimed lib’rul judges had done. They retained the words of the fetish, however, which requires Scalia and his fellow RATS to engage in dubious “law office history” as they tendentiously opine that the Founders actually contemplated and approved whatever item on the “conservative” wish list they are attempting to bless.
Of course, in my view their arguments are much more specious, since they seek to demonstrate that the Founders “intended” every yahoo to have a right to a personal home armory, and every CEO the right to spend his entire corporate treasury on candidates in every federal election in the country, and that Congress does not have plenary power under the 15th amendment to ensure the right to vote in ex-Confederate states (for example).
Constitutional rulings have to be logically tied to the values that seem to lie behind the words of the particular provision. These values aren’t that hard to discern. And words in a constitutional provision cannot simply be ignored as though they don’t exist—such as “well regulated militia” in the second amendment. As for constitutional “growth” and understanding over time as societies (necessarily) change, the Great Chief Justice, John Marshall, himself laid out the proper intellectual approach in 1819: “We must never forget it is a constitution we are expounding”…
So yes, the Founders would undoubtedly be puking their guts out over the outrages and abuses being done in their name by our horrendous “conservative” movement—the NRA monsters and gun nuts in particular. And Franklin would have no doubt that the grand experiment of 1789 turned out to be a grotesque and irremediable failure and urge us to chuck the whole thing.
The Founders attempted practicality and greatly valued human reason and debate over superstition and divine “orders”. There is a reason their age was called the Enlightenment, haha. They were an independent minded and largely free-thinking group who didn’t feel particularly bound to the traditions, rituals and shibboleths of the past–so they would be disgusted beyond belief at their (supposed) deification by today’s braindead conservatives and Tea Party turds. They would see this as weak-minded, craven behavior.
Go read English history, from the Tudors through the Civil War and Cromwell. You will recognize each of this morning’s headlines — and yesterday’s, and tomorrow’s. Nothing [that matters] has changed.
You will also, of course, recognize what the founders of the American Republic were reacting against.
You will also recognize that they failed, utterly and irretrievably.
To the Founders, the right to a well regulated militia and the related right to bear arms was intended to make it unnecessary to have a large standing army. It implicitly contrasted the ‘citizen soldier’ with the hireling tool of a tyrant. A large, permanent army was believed to be one of the greatest threats to liberty, right up there with a powerful religious establishment.
The size and cost of our military today would be high on the long list of things about the modern U.S. that would frighten and disgust the Founders (well, maybe not Hamilton).
Adherence to original intent with respect to the 2nd amendment would require disbanding most of our military.
I have found that the majority of the GOP that run around screaming the Constitution, the Constitution. Do not know the difference between the Constitution and The Declaration of Independence.
What these GOP members do is use these two documents to support their position on things. They only care about the parts that supports their believes those parts are holy in their eyes. All other parts that might conflict with their believes are unimportant, not worth reading. Like the Bible GOP members pick and choose what will support their believes and ignore the rest.
Try asking GOP members what the Constitution says sometimes and see how little most know. By the way carry a copy of it on you when you do this so they can see it themselves. See you are always thought of as a liar. Let the document do the talking for you for the most part.
A very big problem with the conservative white male is that they are woefully ignorant, but see themselves as highly informed and intellectually gifted.
In olden days the ignorant understood they were ignorant. Now they are courted by Repubs.
Well, the other main fallacy is to talk as if the Founders, collectively, speak with one voice. The people who wrote and ratified the constitution basically intended to try out a new form of government, but they had to make a number of compromises to arrive at something they could agree on. The fight over the true meaning of the Constitution started pretty much as soon as it took effect.
Off-topic in an otherwise serious discussion, but I can’t resist:
From what I understand of Ben Franklin’s life and adventures in Paris, he would instantly have recognized what the pill, IUDs (and latex condoms) were all about, and thought them most excellent innovations! 🙂
And I don’t think Franklin, Jefferson (or Adams) would have any problem with technology if they time-traveled to today. Those guys were wicked smart, they would be adapted inside a month.
They would still think our written English rather boring, with sentences much, much too short and choppy.
-Jay-
Well, the other primary misconception is to discuss as if the Creators, jointly, discuss with one speech. The individuals who had written and ratified the structure generally designed to try out a new way of govt, but they had to make a variety of adjustments to reach something they could believe the fact on. The battle over the real significance of the Constitution began fairly much as soon as it took impact.
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