It’s Like Having A House Fall On You

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11 Responses to It’s Like Having A House Fall On You

  1. Chris Peterson says:

    For all you fans of the strict-constructionist reading of the Constitution; whatever happened to this rule of the House, as explained by James Madison writing as Publius in Federalist Paper #57?:

    “I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”

    Sure would be swell if the House went back to this original Constitutional rule. Hell, we would have been one of the first industrialized nations to have single payer, instead of the last.

  2. Greg Goodknight says:

    I’m happy to man’splain it to you, Chris.

    Like “trickle down economics”, “strict constructionist” is a nearly meaningless label generally used pejoratively by folks who just know they don’t like those guys despite not knowing those guys. Scalia was on the record that no one should be a strict constructionist.

    On top of that, you missed the basic point of originalism and textualism… if it’s a thought that didn’t get accepted and written into the Constitution, and ratified, such a justice probably won’t go looking for it, and, for some reason, no audio or videotapes survive from the period. The assumption would be, for example, digging out drafts of what became the 2nd Amendment that included terms that limited owning and carrying guns to organized militia… what is more important… that some were thinking collective rights only, or that the final version dropped those words more indicative? All we really have is the text that was agreed upon.

    A living constitution is akin to “I am altering the deal, pray I do not alter it any further”.

    In other words, Chris, it isn’t an “original Constitutional rule” if it didn’t get written into the Constitution in the first place although one of the GOP congresscritters interviewed recently (Morning Joe?) was claiming as a Congressman, he really was in a plan defined by Obamacare and even with his comparatively high income, had problems with the high deductibles.

  3. Chris Peterson says:

    Greg,
    Your zeal for argument has taken you to a fantasia of logic. Your claim that I have “missed the basic point of originalism” shows a willful ignorance of the term, itself. To wit:
    Originalism- the judicial interpretation of the constitution that aims to follow closely the original intentions of those who drafted it.
    For you to discount the quintessential explanation of the original intent of the text, written by the very founders who crafted those words, is beyond absurd. Thomas Jefferson called The Federalist Papers “the best commentary on the principles of government…ever written.” For John Stuart Mill, The Federalist was “the most instructive treatise we possess on federal government.” Alexis de Tocqueville thought it “an excellent book, which ought to be familiar to the statesmen of all countries.” Historians, jurists and political scientists have generally agreed that The Federalist is the most important work of political philosophy and pragmatic government ever written in the United States. It has been compared to Plato’s Republic, Aristotle’s Politics and Hobbes’ Leviathan yet, in your most hallowed opinion, it is somehow outside of the consideration of the nation’s highest jurists when considering what the founders’ words actually meant.

    Further, your statement that, “if it’s a thought that didn’t get accepted and written into the Constitution, and ratified, such a justice probably won’t go looking for it”, is a thoroughly ridiculous assumption. Perhaps, in your mind, the justices sit in their chambers, holding hands, and chanting the text of the Constitution ad nausea, until they can divine the true meaning.

    I will give you kudos for astutely bringing the image of Scalia and the words of Darth Vader into close approximation, because anyone who can come to the conclusion that, “Mere factual innocence is no reason not to carry out a death sentence properly reached”, is worthy of a red light saber.

  4. Greg Goodknight says:

    Chris Peterson, you were citing (out of context) a few sentences from The Federalist Papers as if they had the force of law. They do not.

    Originalism as described by originalists refers to the original meaning of the words that were agreed to and ratified. Not the holding of séances to ask the dear departed what they intended to write.

    Now you pass along an out of context misquote by Scalia that didn’t get a life of its own until after his death a year ago. Figures.

    “In this instance, what’s important is not exactly what he said, but what he meant.

    However, Justice Scalia’s words regarding that decision are often quoted out of context, leaving readers with the mistaken impression that he believed it was perfectly acceptable for our legal system to execute people whom we knew to be innocent. In the fuller context, what he was actually expressing was that once a person had been fairly convicted and sentenced in court, and had exhausted all his possible avenues of appeal, a last-minute claim of innocence was not by itself sufficient grounds for further delaying the carrying out of the sentence.”

    http://www.snopes.com/scalia-death-penalty-quote/

    • Chris Peterson says:

      So. which is it, Greg?

      You quote, in defense of Scalia that, “In this instance, what’s important is not exactly what he said, but what he meant.” But when I quote what an author of the Constitution says he meant when he wrote it, you object that it’s not what it says. Even you should be able to see the contradiction, but much like your hero, Scalia, you use the guise of pseudo-originalism to arrive at a decidedly conservative conclusion. (Or, have you missed the entire reason behind the fight for Gorsuch over Garland?)

      And, “out of context”? I suppose you got me there; I only quoted one of the five preliminary reasons Madison gave in explaining what he meant, as an integral member of the Philadelphia Convention when they wrote the Law of the Land document, when I could have quoted the entire Federalist #57, titled “The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation.”

      May I suggest some possibly enlightening reading to open your otherwise closed mind:
      The Federalist Papers; by Jay, Hamilton, and Madison, on the *meaning* of the text of the Constitution, and
      Herrera v. Collins; particularly Blackmun’s dissent, joined by Stevens and Souter. (But, be sure to read the entire case file; I wouldn’t want you to learn anything “out of context.”)

  5. Greg Goodknight says:

    Pseudo-originalism? Hero? More argumentum ad hominems from the guy who, I’m going to guess, still hasn’t apologized to the ‘Greg Goodnight’ (and family) he knew 40 years ago.

    I suppose you agree with California’s new junior Senator, Kamala Harris, who is planning on voting against Gorsuch’s confirmation because he follows the law (those inconvenient legal technicalities) rather than making up the law on the fly to fit her left-liberal sense of social justice. Even the late liberal icon Justice Black was a key originalist…
    “I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me”
    -Hugo Black, dissent to Griswold (1965)

    I’d lend you my copy of The Federalist Papers, Chris, but I somehow doubt you’d actually read it and understand. Especially #84, where Alexander Hamilton declared his opposition to a bill of rights on the ground that it was unnecessary … after all, the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights.

    Imagine that.

    No Chris, while the Federalist Papers remain important, the actual words of the Constitution are the law.

    • Chris Peterson says:

      Again, Greg, which is it?

      “In this instance, what’s important is not exactly what he said, but what he meant.”

      Or

      ” the actual words of the Constitution are the law.”

      “Then you should say what you mean,” the March Hare went on.

      “I do,” Alice hastily replied; “at least–at least I mean what I say–that’s the same thing, you know.”

      “Not the same thing a bit!” said the Hatter. “You might just as well say that “I see what I eat” is the same thing as “I eat what I see”!”

      Let’s do tea sometime.

  6. Greg Goodknight says:

    It’s easy to keep straight if one isn’t trying to manufacture a reason to ignore the words that make up the law. Your mercurial logic goes nowhere.

    One is the law as stated in the Constitution, the other is a character assassination taking one sentence of an opinion out of context… which was fixed by Snopes not by researching other statements of Scalia’s, but by quoting more of the Scalia dissent the misleading sentence was snipped from, after he was dead, in order to trash his views on the law. Snopes wasn’t fooled, but, apparently, you were and continue to double down.

    One would think a reference to Hamilton’s being against a Bill of Rights in Federalist 84 would be enough to show you the error of your ways but apparently not.

    Earl, was your old friend always so clueless?

    Hamilton’s opposition to a Bill of Rights, his love of big government and big central banks, led him to slander Jefferson’s VP, Aaron Burr. Can’t say dueling is a better way to settle such unfinished business but we need more Jefferson, not more Hamilton on our high court now.

  7. Chris Peterson says:

    Jefferson was against it because he thought he’d already spelled it out when he wrote the preamble to the Declaration: We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.
    He obviously came to realize that, if they weren’t specifically written into the Constitution, someday some fat Italian Supreme Court justice would claim they didn’t exist.
    Ergo:
    “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” -Jefferson
    “Or rest on inference.” Get it?

    Had he lived longer, I’m more than sure that Hamilton, like Madison, the author of our Bill of Rights who, like Jefferson, thought they were redundant, would have come around. In their wisdom, they obviously knew that there are folks like you who, if they can’t point to it, then they can’t understand it. Yours’ is an incredibly odd argument from one who claims to be a libertarian, but certainly not out of character.

    By the way; many of us knew and disagreed with Scalia’s opinion in Herrera v. Collins, since it was decided way back in 1993, two years before Snopes did your thinking for you, and way before Scalia’s timely demise.

  8. Greg Goodknight says:

    Let me guess, you also are laboring under the common misunderstanding that the Declaration of Independence has the force of law? No more than Federalist No. 84.

    “Had he lived longer, I’m more than sure that Hamilton, like Madison, the author of our Bill of Rights who, like Jefferson, thought they were redundant, would have come around.”

    I’m more sure than you can be that Alexander Hamilton didn’t come around regarding the need for a specific Bill of Rights before meeting Aaron Burr for some unfinished business, losing all. That’s a great thing about facts, compared to d’ruthers or your Ouija Board.

    Not that Burr enjoyed his post-Hamilton Pyrrhic (look it up, Chris) victory, but it was probably better for Burr than for Hamilton.

  9. Chris Peterson says:

    Pyrrhic victory?
    One need look no further than the election of Don Trump to see a perfect example, and many articles have used the term since that event. But fear not; between the two of you, you are far more magniloquent.

    Having read extensively about Hamilton, (and way before he became a popular Broadway rapper), and believing him to be the intellectual equal of both Jefferson and Madison, it’s my opinion that, faced with the daunting task of convincing the people of New York to vote for the new Constitution, who’s elite were opposed to it, being well-entrenched at the pinnacle of colonial power, his words in the Federalist Papers were those of a salesman and answering to the charge that there was no bill of rights offered. That’s why I stated that, had he lived long enough to see Madison’s work, he would have acknowledged it as the people’s portion of a national contract for government, and would have been every bit as supportive as Jefferson and Madison, after the fact.

    I also find your comment, that you believe it common for people to think that the Declaration is law, to be reflective of a self-inflated ego. No wonder you’re so empathetic to our Orange Julius Caesar.

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