Libertarianism

[MrJonno]

I stopped reading after my last post at the point where Seth proclaimed that "America is the greatest nation on the earth" or something like that. I get so tired of debating with idiots.

Actually there is some evidence that doing so can actually save lives, people vent their anger and hatred out on the internet instead of shooting up the local school or cinema

[Coito ergo sum]

So that the wheel doesn't need to be reinvented every generation.

And so that we can remain as close as possible to the original vision for this nation by using the writings of the Founders tnto inform our analysis and interpretation of the document they left to us.

That I don't agree with. We aren't married to the original vision, whether that be Madison's vision, Hancock's vision, or Adams' vision, or whomever. I lean more towards the Jeffersonian idea that each generation should have a revolution. At least, I think that each generation should decide whether it is necessary. Jefferson's Declaration is based on reason, and is not dogma. Where reason leads depends on facts, circumstances and experience.

I have no problem with even eventually the US ceasing to exist. It is the way of things. It will go. The important thing is to use reason to make a revolution that makes things even better for humanity.

"The world is my country, all mankind are my brethren, and to do good is my religion." - Thomas Paine (echoing Socrates, "I am a citizen, not of Athens or of Greece, but of the World.")

If, after considering carefully the original intent and the ramifications of changing the meanings of that intent, we, the People, decide to amend the document to better suit our needs as a nation, we have full authority to do so. The catch is that the Constitution may not be "reinterpreted" by either Congress or the Supreme Court, it must be AMENDED by a vote of the people, using the prescribed process, which is intentionally cumbersome, slow and deliberative.

Yes, yes, yes....obviously, there is an amendment process. But, the Constitution always must be interpreted. Interpretation is required when we read any document, particularly a legal document, in order to find the meaning. The provisions are phrased very generally, and in broad and sweeping terms. Often the edges and limits of what is written are not clear or inarguable. The argument goes on, and one of the functions of a court is to "interpret and apply" the law, including the Constitution. And, Congress interprets the Constitution when drafting legislation within its powers, and they will often explain their sense of why they think particular legislation is Constitutional in the preamble of legislation. Whether they are right is often taken up by the courts, and argued by the Executive Branch, tasked with enforcement.

Reinterpretation is most often just a matter of different people expressing different interpretations. One person says that their interpretation is right, or the first in time, and considers other arguments to be "reinterpretations."

It is perfectly acceptable, for example, for a constitutional amendment to be proposed, circulated and ratified as per the Constitution to remove the right to keep and bear arms, or the right to an abortion. What is not acceptable is for the courts or the legislatures or anyone else to subvert that due process and "reinterpret" the Constitution as a "living document" to suit their particular contemporary ideology or ideas just because they happen to be in power.

You want to change it, then do it the right way. Otherwise original intent rules constitutional interpretation, period.

Yes, yes, but between those two extremes -- amendment on the one hand and "reinterpretation to suit an ideology" is the reality of "reasonable disagreement as to the meaning of words and phrases, and reasonable disagreement as to the limits and extent of the right involved." The amendment doesn't say "Every person in the US has the unfettered right to keep and bear any arm, anytime, anywhere, without restriction or regulation or limit." It says, "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." So, there is room for reasonable people to differ as to what this means - we don't need to interpret it to mean that every kind of "arm" is permitted, or that there can't be restrictions on rates of fire, power, safety, licensure, and such.

I mean -- look at what restrictions are always taken as a given even by pro-gun lobbies. They say, "of course well, the psychologically unfit and convicted felons ought not have guns..." but, there hasn't been a constitutional amendment to that effect. Why are they assumed? Mainly because they stand to reason, I suspect.

[Coito ergo sum]

So that the wheel doesn't need to be reinvented every generation.

Since when do politicians acting as politicians invent anything (a few but not many were however great scientists and engineers)

It's a metaphor. It ought to have conveyed the idea that things need not always be rehashed or redone over and over again.

What I meant literally is that some good thinking has previously been done, and people have puzzled out some important concepts that don't just come naturally to people. It takes some work. So, reading Kant, Hume, Russell, Thoreau, Locke, Mill, Plato, Lucretius, Marcus Aurelius, Sun Tzu, and such, let's you stand on the shoulders of giants and see further (I know, I know, politicians aren't really standing on anyone's shoulders....).

[Coito ergo sum]

like Communism, where it's "everything that is not explicitly permitted is forbidden

Is that in Das Kapital wikipedia edition? or just pulled out of your arse like 'hot' burglaries

It's an old concept of English law "everything which is not forbidden is allowed."
In Germany, the opposite applies, so "everything which is not allowed is forbidden."
In France, "everything is allowed even if it is forbidden"
In Russia "everything is forbidden, even that which is expressly allowed"
In North Korea "everything that is not forbidden is compulsory."

[MrJonno]

What I meant literally is that some good thinking has previously been done, and people have puzzled out some important concepts that don't just come naturally to people. It takes some work. So, reading Kant, Hume, Russell, Thoreau, Locke, Mill, Plato, Lucretius, Marcus Aurelius, Sun Tzu, and such, let's you stand on the shoulders of giants and see further (I know, I know, politicians aren't really standing on anyone's shoulders....).

Be aware of what other people have thought about in the past is a decent part of any persons education, but basing your current thinking/policy on people who are now dead and lived in very different times is a completely different matter. A politician responsibility is not to live up the ideals of long dead people its to serve the living and some extent those who will live.

Its like saying evolution is true because Darwin said it was, evolution is true as there is evidence for it and where Darwin was ignorant he still is (on the basis of being dead). You can value his contributions to science without worship or even refering to his work in modern science

[Coito ergo sum]

What I meant literally is that some good thinking has previously been done, and people have puzzled out some important concepts that don't just come naturally to people. It takes some work. So, reading Kant, Hume, Russell, Thoreau, Locke, Mill, Plato, Lucretius, Marcus Aurelius, Sun Tzu, and such, let's you stand on the shoulders of giants and see further (I know, I know, politicians aren't really standing on anyone's shoulders....).

Be aware of what other people have thought about in the past is a decent part of any persons education, but basing your current thinking/policy on people who are now dead and lived in very different times is a completely different matter. A politician responsibility is not to live up the ideals of long dead people its to serve the living and some extent those who will live.

Its like saying evolution is true because Darwin said it was, evolution is true as there is evidence for it and where Darwin was ignorant he still is (on the basis of being dead). You can value his contributions to science without worship or even refering to his work in modern science

You missed the part about standing on their shoulders....

No, it's not like saying evolution is true because Darwin says it is. It is like saying, I should read what others have written about evolution before I think that whatever speculation I dream up is particularly groundbreaking, and I might consider not retracing paths that are well-worn already.

[MrJonno]

You missed the part about standing on their shoulders....

No, it's not like saying evolution is true because Darwin says it is. It is like saying, I should read what others have written about evolution before I think that whatever speculation I dream up is particularly groundbreaking, and I might consider not retracing paths that are well-worn already.

You can use other peoples work where you find it useful but need to be prepared to reject it completely where it is not. Is it not possible that the politics of someone who died 200 +years ago may be fully correct or just plain wrong. I can see there is a difference between a literal and trying to interpret a constitution in the same way people treat the bible but its still an assumption that the basic concepts are all correct. Darwin's Origin of the Species was revolutionary but that doesnt change the fact that some parts of it were just plain bollocks

[Coito ergo sum]

You missed the part about standing on their shoulders....

No, it's not like saying evolution is true because Darwin says it is. It is like saying, I should read what others have written about evolution before I think that whatever speculation I dream up is particularly groundbreaking, and I might consider not retracing paths that are well-worn already.

You can use other peoples work where you find it useful but need to be prepared to reject it completely where it is not. Is it not possible that the politics of someone who died 200 +years ago may be fully correct or just plain wrong. I can see there is a difference between a literal and trying to interpret a constitution in the same way people treat the bible but its still an assumption that the basic concepts are all correct. Darwin's Origin of the Species was revolutionary but that doesnt change the fact that some parts of it were just plain bollocks

Sure, but the element you seem to miss is that you can't intelligently reject it until you know something about it. You seem to put the cart before the horse there, rejecting what philosophers have said over the years in advance, simply because you think that people today are smarter and the people 100, 200 or 300 years ago were -- what was the word you used...oh, yes... "savages."

Darwin's Origin of Species isn't the end, it's the beginning. And, every self-respecting evolutionary biology student has read it.

[MrJonno]

Automatically reject something because it was written 300 years ago no, be suspicious that it may have significant failings absolutely. While something being old doesn't make something automatically bad it doesn't make it automatically good. There are a few good words of wisdom in the bible but most of it is just one long horror story of hate and ignorance. The US constitution is definitely a big improvement over that (it would be hard for it not to be).

On the whole with any laws if you have to constantly refer to judges to interpret them its probably a lot better to start at writing new ones

[Coito ergo sum]

The fact that you don't understand that it is the English system that used for more than 1,000 years, and still utilizes, the system of judge's interpreting laws is what I'm talking about.

You don't seem to merely be cautious about older writings. Rather, you ignore them completely simply because they are old, and I strongly suspect you haven't read many of the classics.

[MrJonno]

The fact that you don't understand that it is the English system that used for more than 1,000 years, and still utilizes, the system of judge's interpreting laws is what I'm talking about.

You don't seem to merely be cautious about older writings. Rather, you ignore them completely simply because they are old, and I strongly suspect you haven't read many of the classics.

You hardly need to be a professional philosopher or lawyer to realize things change. Judges do interpret laws but once they start interpret them in the way that the public/elected politicians don't like you change the law not the judges.

Judges in the UK can basically veto anything a politician does as unlawful under current laws but what they can't do is stop them changing the laws to make their actions lawful which is fine by me as politicians are elected judges are not

[Coito ergo sum]

The fact that you don't understand that it is the English system that used for more than 1,000 years, and still utilizes, the system of judge's interpreting laws is what I'm talking about.

You don't seem to merely be cautious about older writings. Rather, you ignore them completely simply because they are old, and I strongly suspect you haven't read many of the classics.

You hardly need to be a professional philosopher or lawyer to realize things change.

Nobody says they don't. That's not a reason to discard or ignore prior work.

Judges do interpret laws but once they start interpret them in the way that the public/elected politicians don't like you change the law not the judges.

Sometimes you change the judges. Sometimes you change the laws. It depends. If the judge goes off the deep end, he might be impeached. If the law is poorly written or ambiguous and misinterpreted, then of course, you change the law. You're not saying anything that everyone doesn't agree with. It's also no reason to discard or ignore prior work, or to throw the system of courts interpreting the law, or the common law system, out the window.

Judges in the UK can basically veto anything a politician does as unlawful under current laws but what they can't do is stop them changing the laws to make their actions lawful which is fine by me as politicians are elected judges are not

Judges in the US can't stop legislators from changing laws to make their actions lawful either. We have a hierarchy of laws here, with the Constitution being the top, and laws which are enacted are enacted pursuant to powers granted to the government by the people in the constitution. The government is not allowed to do things they haven't been empowered to do.

So, if a judge looks at the law and finds that it is an overreaching of government power, then the judge makes that ruling. That decision can be reviewed, and reviewed again, in the appeals process, with the Supreme Court being the final judicial arbiter. If the Courts still find that the government was not empowered to do what it did, then the government can go back to the people and get a change in the constitution. There are provisions for this -- amendments to the constitution, referendums to the people, and even a constitutional convention to redo some or even all of it from scratch.

[Seth]

I stopped reading after my last post at the point where Seth proclaimed that "America is the greatest nation on the earth" or something like that. I get so tired of debating with idiots.

Talk to yourself a lot, do you?

[rasetsu]

As I understand it, the Constitution was written largely by the same people operating under the same beliefs, as the Declaration, i.e. that man is endowed with certain inalienable rights (as you point out, the source of those rights (natural/supernatural) may have been a matter of contention). It was written explicitly to spell out the rights (powers) being granted to, not to list the rights (powers) to be granted by the new federal government. As they eventually did spell out in the Ninth and Tenth Amendments: Just because we listed a bunch of rights specifically, this isn't meant to be an exhaustive list of all the rights retained by the people (get it, retained - you can't retain what you don't already possess); and, if a power isn't expressly granted to the United States, or prohibited to the States by the Constitution, it is reserved to the States respectively, or to the people (because, once again, the people are where the power comes from, therefore they aren't granted the power, it is reserved to them).

The problem is that Seth was arguing a textualism based on texts that didn't have the claimed support (he wrote, "they (and the mass of people who ratified the Constitution) ultimately agreed on a form of government that acknowledges the fundamental, natural, inherent and unalienable character of rights"). Now if you want to get into channeling what the founders intentions were, get out the Ouije board and some popcorn, as that way madness lies. This is similar to last year's case of Obama's eligibility to be on the Georgia ballot in which Seth argued that the proponents had a strong case, in which part of the argument was making inferences as to what "natural born" meant from British common law. To argue textualism out one side of your mouth, and founder's intentions out the other, is to me, a profoundly inconsistent position, if that is indeed what Seth was doing. (I'll let him answer the charge, but I don't think he was doing so intentionally.)

[Seth]

So that the wheel doesn't need to be reinvented every generation.

And so that we can remain as close as possible to the original vision for this nation by using the writings of the Founders tnto inform our analysis and interpretation of the document they left to us.

That I don't agree with. We aren't married to the original vision, whether that be Madison's vision, Hancock's vision, or Adams' vision, or whomever. I lean more towards the Jeffersonian idea that each generation should have a revolution. At least, I think that each generation should decide whether it is necessary. Jefferson's Declaration is based on reason, and is not dogma. Where reason leads depends on facts, circumstances and experience.

I have no problem with even eventually the US ceasing to exist. It is the way of things. It will go. The important thing is to use reason to make a revolution that makes things even better for humanity.

"The world is my country, all mankind are my brethren, and to do good is my religion." - Thomas Paine (echoing Socrates, "I am a citizen, not of Athens or of Greece, but of the World.")

I don't fundamentally disagree with what you say, I merely disagree with how it's being done. As I said, the whole purpose of a Constitution is to set the supreme law of the land and create a touchstone that each subsequent generation must look to BEFORE deciding how it wishes to change society. I have no objection to the idea that a Constitution is a "living document" that's intended to serve the needs of the present generation. What I have grave objection to is how Progressives choose to go about changing the content and meaning of the Constitution by judicial fiat and Congressional overreach. That's not how it's done.

The method for updating the Constitution to meet the needs of today is the same as it was when it was written: Amendment. It's a very formal and lengthy process specifically intended to prevent the winds of popular opinion and the whims and caprices of judges and legislators from misusing their power to remake the society as they see fit without the consent of the governed.

If you want to change the supreme law of the land, then by all means do so, but do it properly so that the new law best represents the actual will of the people and not the will of some avaricious politician or despot.

It is within the power of the People to entirely abandon the Constitution and find some new form of government that best suits their needs and desires, but short of amending it out of existence, you are right, revolution is the only other "legitimate" means of expressing the will of the People and the consent of the governed.

If, after considering carefully the original intent and the ramifications of changing the meanings of that intent, we, the People, decide to amend the document to better suit our needs as a nation, we have full authority to do so. The catch is that the Constitution may not be "reinterpreted" by either Congress or the Supreme Court, it must be AMENDED by a vote of the people, using the prescribed process, which is intentionally cumbersome, slow and deliberative.

Yes, yes, yes....obviously, there is an amendment process. But, the Constitution always must be interpreted. Interpretation is required when we read any document, particularly a legal document, in order to find the meaning. The provisions are phrased very generally, and in broad and sweeping terms. Often the edges and limits of what is written are not clear or inarguable. The argument goes on, and one of the functions of a court is to "interpret and apply" the law, including the Constitution. And, Congress interprets the Constitution when drafting legislation within its powers, and they will often explain their sense of why they think particular legislation is Constitutional in the preamble of legislation. Whether they are right is often taken up by the courts, and argued by the Executive Branch, tasked with enforcement.

Reinterpretation is most often just a matter of different people expressing different interpretations. One person says that their interpretation is right, or the first in time, and considers other arguments to be "reinterpretations."

Yes, interpretation is necessary, but as I said the touchstone is always original intent, and it is from there that any interpretation must begin. This is not always easy, but it's important to begin at the beginning as far as possible because the Constitution as written and ratified, and the opinions of those who wrote it and ratified it that are recorded, are the closest we can come to understanding what they meant and therefore what they agreed to in ratifying the document.

It is perfectly acceptable, for example, for a constitutional amendment to be proposed, circulated and ratified as per the Constitution to remove the right to keep and bear arms, or the right to an abortion. What is not acceptable is for the courts or the legislatures or anyone else to subvert that due process and "reinterpret" the Constitution as a "living document" to suit their particular contemporary ideology or ideas just because they happen to be in power.

You want to change it, then do it the right way. Otherwise original intent rules constitutional interpretation, period.

Yes, yes, but between those two extremes -- amendment on the one hand and "reinterpretation to suit an ideology" is the reality of "reasonable disagreement as to the meaning of words and phrases, and reasonable disagreement as to the limits and extent of the right involved." The amendment doesn't say "Every person in the US has the unfettered right to keep and bear any arm, anytime, anywhere, without restriction or regulation or limit." It says, "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." So, there is room for reasonable people to differ as to what this means - we don't need to interpret it to mean that every kind of "arm" is permitted, or that there can't be restrictions on rates of fire, power, safety, licensure, and such.

I mean -- look at what restrictions are always taken as a given even by pro-gun lobbies. They say, "of course well, the psychologically unfit and convicted felons ought not have guns..." but, there hasn't been a constitutional amendment to that effect. Why are they assumed? Mainly because they stand to reason, I suspect.

And this is precisely where the contemporary writings of the authors and ratifiers of the document are important. That's what "original intent" is all about. What did the Founders understand about "arms" and what were they used for at the time? What sort of regulations would they have been contemplating when they wrote the words "the right of the people to keep and bear arms shall not be infringed?" Were the founders broadminded enough to understand the march of technology? Did they anticipate weapons other than firearms when they wrote "arms?" And what did they mean by "keep and bear?" Did they mean precisely that, to possess and carry (in modern parlance) and that the right to do so shall be absolute and without restriction or limit whereas the use of those arms, be it discharge of a firearm or cutting with a sword can be reasonably regulated in the interests of public safety? My "interpretation" is precisely that. There is no evidence that the Founders suffered any restrictions on what sort of arms could be carried or where they might be possessed, but the principles of peaceable public conduct are reasonably clear and it's obvious that they subscribed to restrictions on how and when someone might USE those arms. But keep in mind that at the time, dueling was lawful (and probably should be now) and matters of honor were taken quite seriously.

This is why historical reference to not just the words of the Founders (authors and ratifiers) are important, but also why knowledge of the social behavior, mores, language and understandings of the time also enter the equation when considering just what they meant when they wrote the words.

Change is not forbidden, but "reinterpretation" is. Original intent must serve as the touchstone until the formal process of amendment is completed so that the new law best expresses the will of the People and the consent of the governed.