On "Original Intent" arguments

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On "Original Intent" arguments

Postby TerraFrost » Thu Dec 16, 2004 8:52 am

Original Intent arguments have been used on an increasing basis to justify such things as the right to bear arms, bans on flag burning, and antidisestablishmentarianistic policies (which are, coincidently, positions that are most frequently adopted by Republicans). In this post, I'm gonna address the fallaciousness of the arguments used to justify bans on flag burning, as developed here.

Also, as a disclaimer, I don't have any personal opinions on flag burning. In fact, I believe that the above sites entry "If the flag is my property, I can do with it as I wish, as with any of my property" is quite good. I just don't believe that the "Original Intent" argument they develop is a good one (in fact, I believe such arguments are rotten to the very core).

Anyway, without further aidieu...

Flag burning is not speech as defined by our Founding Fathers in the First Amendment. The First Amendment reads. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." James Madison, who wrote the First Amendment, condemned flag burning as a crime.

Madison's authorship of the US Constitution didn't prevent him from losing int he landmark courtcase Marbury v. Madison nor did it prevent the Federalist party (which disagreed with Madison on, among other things, the interpretation of the so-called Elastic Clause of the Constitution) from being legitimate, so why should it prevent flag burning? If we are to remain true to our roots, as a nation, we must remember that James Madison and Thomas Jefferson aren't the only people who planted those roots.

Thomas Jefferson agreed with Madison and made clear in his writings that "speech" in the First Amendment meant the spoken word, not expression or expressive conduct of any kind. To say otherwise made "press" a redundancy.

Amendment IX, in the Bill of Rights, states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," yet this is exactly what the above argument is doing. To elaborate - if the word "press" wasn't included, it wouldn't have been a redundancy, and thusly, freedom of speech could be understood to be synonymous with freedom of expression. To say otherwise, simply because of the inclusion of the word "press", would be a violation of Amendment IX.

Also, in The Federalist Papers, No. 84, Alexander Hamilton writes the following (almost prophetically):

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?


Thus, the entire Bill of Rights is redundant. Further, Amendment IX is redundant because it reaffirms that which Hamilton said was already conveyed the Constitution. So why can't it be assumed that the inclusion of the word "press" is redundant, as well?

Activist judges have added them to the Constitution in order to promote their own political agenda.

Promotion of ones political agenda is hardly a sin. The words "under God" was added to the Pledge of Allegence in 1954 to "distinguish the U.S. from the officially atheist Soviet Union, and to remove the appearance of flag and nation worship." Should that, then, be removed, as well?

This fact is also confirmed by current Constitutional experts, 70% of the Congress, the legislatures of all 50 states and three out of four Americans.

First, this isn't a fact. It's an opinion that carries the weight of law. Second, just because the majority of people believe in something doesn't make that which they believe in right. Shortly before the 2004 presidential election, a majority of Bush supporters, who, themselves, were a majority, believed that Iraq had been involved in the Sept. 11, 2001 attacks on the US and believed that Iraq had a major WMD program (ref). A majority of Americans also believe in the virgin birth of Jesus Christ and don't believe in evolution (ref). Hardly makes any of them right.
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Postby Gigafrost » Sun Dec 19, 2004 3:03 am

Promotion of ones political agenda is hardly a sin. The words "under God" was added to the Pledge of Allegence in 1954 to "distinguish the U.S. from the officially atheist Soviet Union, and to remove the appearance of flag and nation worship." Should that, then, be removed, as well?

Knowing that you wanted references, I guess the 9th circuit court would be an okay reference for this part, yes?

http://www.ca9.uscourts.gov/ca9/newopin ... penelement


As for all the other points, I pretty much agree with them. They're pretty good points, imo, and I'm no good at playing devil's advocate (you know, making points counter to your position for the sake of argument...)
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Postby TerraFrost » Sun Dec 19, 2004 7:35 am

after looking at this website which uses an "original intent" argument to justify anti-gun control positions, i think i need to revise my stance, heh. i think that "original intent" arguments can be good, if used correctly. whether or not they should be deciding factors in the deliberation of law is another matter entirely. wikipedia's entry on original intent provides a good discussion here.

anyway, the previously mentioned anti-gun control site has sorta motivated me to look to other sources for the founding fathers original intent with regard to the first ammendment.

from the 1803 edition of Blackstone's Commentaries on the Laws of England (Volume II)...

That if this absolute freedom of inquiry may be, in any manner, abridged, or impaired by those who administer the government, the nature of it will be instantly changed from a federal union of representative democracies, in which the people of the several states are the sovereign, and the administrators of the government their agents, to a consolidated oligarchy, aristocracy, or monarchy, according to the prevailing caprice of the constituted authorities, or of those who may usurp them. That where absolute freedom of discussion is prohibited, or restrained, responsibility vanishes.

pursuant to that, it seems as if freedom of speech and press ought to be understood as freedom of inquiry through every communication medium (books, speech, tv, radio, internet, etc). however, understanding it in that manner means that political cartoons aren't protected as a part of free speech. that is, of course, unless you see political cartoons as catalysts to mass inquiry which is something that flag burning could very well be, too.
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Postby tsian » Sun Dec 19, 2004 5:53 pm

While there are arguements to the dead-tree/original intent argument, I'm a firm believer in the idea of the living-tree as laws must adapt to meet changing social conditions.
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In an ironic twist, the only trait I find completely appaling is intolerance.
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