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Awesomelyglorious
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26 Dec 2011, 9:47 am

donnie_darko wrote:
Do you think fundamentalism in general, whether it's constitutional, Christian, or Islamic, is a backlash against the relativism that is so dominant in our post-modern society? Do you think people desire something that is still 'set in stone' and that's the appeal behind irrational "by the book" fundamentalism?

Yes, in part. If you're only talking about an Originalist/Textualist interpretation of the Constitution, I'd probably give it more respect than the other two, but even then it has questionable grounds.

Yes, I think that people want something "set in stone", and that this drive is one of the drives that pushes them towards strictness in interpretation. There is a real issue involved though on what it means to have "rule of law", and originalism/textualism has one of the more intuitive answers.



Philosmarkxyz
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26 Dec 2011, 10:49 am

Awesomelyglorious wrote:
donnie_darko wrote:
Do you think fundamentalism in general, whether it's constitutional, Christian, or Islamic, is a backlash against the relativism that is so dominant in our post-modern society? Do you think people desire something that is still 'set in stone' and that's the appeal behind irrational "by the book" fundamentalism?

Yes, in part. If you're only talking about an Originalist/Textualist interpretation of the Constitution, I'd probably give it more respect than the other two, but even then it has questionable grounds.

Yes, I think that people want something "set in stone", and that this drive is one of the drives that pushes them towards strictness in interpretation. There is a real issue involved though on what it means to have "rule of law", and originalism/textualism has one of the more intuitive answers.


Fundamentalism isn't something new, so it's not like it's only a reaction to a "post-modern" society. America has a history of periodic religious revivals that are "fundamentalist." The first and second Great Awakenings were Fundamentalist. The idea that society has lost its standards and we need to reach into the past for something better, more pure and true, for clearer ideals of morality and religious guidance is hardly new. It waxes and wane as a movement in popular American culture, but has been here almost as long as America itself.



visagrunt
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26 Dec 2011, 12:28 pm

The principles of Rule of Law, Judicial Review and the Living Tree approach to statutory interpretation actually serve to promote legal stability.

When the courts set down strong interpretations of the meaning of constitutional language it sets a framework within which public policy is made. Legislatures can continue to test the limits, and the courts have the ability to make those limits work in the practicalities of the time that they are being considered.

Strict construction is nothing more than a short road to constitutional obsolescence. There are only two options for keeping a constitution relevant: rewrite it continuously, or interpret it contemporaneously.

Given how stunningly glacial your legislatures are, and how politically paralysed you become on any issue involving meaningful disagreement, how could you possibly expect to successfully rewrite your constitution? You would be bogged down in a never ending debate on abortion, gay marriage and flag burning while the issues that actually go to your national security and prosperity lie ignored by all but the policy wonks.

Without the courts you would have been reduced to irrelevance after the Civil War, never to reemerge from your political impasse.


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ruveyn
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26 Dec 2011, 12:44 pm

visagrunt wrote:
The principles of Rule of Law, Judicial Review and the Living Tree approach to statutory interpretation actually serve to promote legal stability.

When the courts set down strong interpretations of the meaning of constitutional language it sets a framework within which public policy is made. Legislatures can continue to test the limits, and the courts have the ability to make those limits work in the practicalities of the time that they are being considered.

Strict construction is nothing more than a short road to constitutional obsolescence. There are only two options for keeping a constitution relevant: rewrite it continuously, or interpret it contemporaneously.

Given how stunningly glacial your legislatures are, and how politically paralysed you become on any issue involving meaningful disagreement, how could you possibly expect to successfully rewrite your constitution? You would be bogged down in a never ending debate on abortion, gay marriage and flag burning while the issues that actually go to your national security and prosperity lie ignored by all but the policy wonks.

Without the courts you would have been reduced to irrelevance after the Civil War, never to reemerge from your political impasse.


The judiciary is just as glacial. Stare Decisis is what makes judicial change slow.

ruveyn



naturalplastic
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26 Dec 2011, 1:25 pm

I thought you were talking about "strict constuctionists" vs "Loose Constructionists". The former being thoose ( i believe scalia is one) who say we have to go by strictly what the words of the constitution say rather than go by the spirit of the words and not by the letter.Jugges cant just fudge things to adapt to modern times. You can only change the constitotion by going through the whole congressional process of amending the constitution.

Strict constructionists could indeed be said to be a secular equivalent of "Fundamentalists".

But you seem to be talking about something else.

If I understand you - youre saying that there is a new kind of religous zealot in america today who believes in something akin to the devine right of kings- that God somehow guided the framers of the constitution to create the documnet they came up with in a way that makes our constititution a mandate directly from god himself ( kinda like folks who claim that god guided the team of scholars who created the King James Bible toward making a perfect bible).

Never heard of that creed before.
I would think that that idea would create contradictions. For one thing the Consitituion is partially about seperation of Church and State. So claiming that God created the US Constitution itsself violates the US constitution - I would think!



Philosmarkxyz
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26 Dec 2011, 1:39 pm

The strict constructionists aren't particularly concerned with stare decisis. Since the court has gone over to the conservatives, more decisions have been overturned than ever before. The conservatives have proven far more willing to overrule previous court decisions and the legislature. The conservatives have been far more activist than the liberal court of the Warren era, if you look at it by the statistics.



Kraichgauer
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26 Dec 2011, 4:39 pm

Philosmarkxyz wrote:
The strict constructionists aren't particularly concerned with stare decisis. Since the court has gone over to the conservatives, more decisions have been overturned than ever before. The conservatives have proven far more willing to overrule previous court decisions and the legislature. The conservatives have been far more activist than the liberal court of the Warren era, if you look at it by the statistics.


Ah, but everyone knowing that would contradict the conservative mythology of evil liberal activist judges, and we can't have that! :P

-Bill, otherwise known as Kraichgauer



visagrunt
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28 Dec 2011, 1:49 pm

ruveyn wrote:
The judiciary is just as glacial. Stare Decisis is what makes judicial change slow.

ruveyn


The difference being that the judicial branch is supposed to be reactive. It does not act until the instant case is before it, and it only responds to circumstances.

On the other hand, the legislative branch is supposed to be, at least in part, proactive. It is supposed to be able to recognize the need for change and to enact legislation (or constitutional change) to encompass that change.

But when the legislative branch is either too cowardly or too paralysed to act, then it is left to the judicial branch to pick up the pieces.


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06 Jan 2012, 6:01 pm

Jacoby wrote:
The idea that it is an "evolving" or "living" document on its own is the ridiculous idea, completely defeats the point of a having a constitution. Its not suppose to be inerrant or divine, that's why there is an amendment process. Simply inventing new powers and "reinterpreting" old ones is dangerous and a big part of the reason we are creeping ever closer to a corporatist police state.


This.

VIDEODROME wrote:
True I think the Constitution can change, but please follow due process. Inventing weird legal shortcuts and trying to skip steps freaks out people.


And this.

The Constitution isn't perfect, but it's a great framework for a nation.



ruveyn
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06 Jan 2012, 6:23 pm

User1 wrote:

The Constitution isn't perfect, but it's a great framework for a nation.


Is that why the United States broke apart in 1861? At it produced a war with 620,000 dead and 1.5 million maimed in a country who population was 32 million.

ruveyn



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06 Jan 2012, 6:44 pm

ruveyn wrote:
User1 wrote:

The Constitution isn't perfect, but it's a great framework for a nation.


Is that why the United States broke apart in 1861? At it produced a war with 620,000 dead and 1.5 million maimed in a country who population was 32 million.

ruveyn


The allowance for the existence of slavery in a country born out of revolution for the sake of liberty was eventually going to explode, leaving lots and lots of casualties.
The important thing is, though, we as a country survived after this traumatic, but unavoidable catastrophe, and in fact thrived.

-Bill, otherwise known as Kraichgauer



ruveyn
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06 Jan 2012, 6:51 pm

Kraichgauer wrote:

The allowance for the existence of slavery in a country born out of revolution for the sake of liberty was eventually going to explode, leaving lots and lots of casualties.
The important thing is, though, we as a country survived after this traumatic, but unavoidable catastrophe, and in fact thrived.

-Bill, otherwise known as Kraichgauer


At the cost of replacing Federalism with a unitary State. After the Civil War we trod along the paths of Soft Fascism. Abraham Lincoln was our first Soft Fascist president. Teddy Roosevelt and Woodrow Wilson followed in due course. And the subsequent history is just the working out of the Soft Fascist dynamics. We are now marching in the Parade of the Cronies. The Government and the Mega Corporations own our rear ends now.

ruveyn



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06 Jan 2012, 11:29 pm

ruveyn wrote:
Kraichgauer wrote:

The allowance for the existence of slavery in a country born out of revolution for the sake of liberty was eventually going to explode, leaving lots and lots of casualties.
The important thing is, though, we as a country survived after this traumatic, but unavoidable catastrophe, and in fact thrived.

-Bill, otherwise known as Kraichgauer


At the cost of replacing Federalism with a unitary State. After the Civil War we trod along the paths of Soft Fascism. Abraham Lincoln was our first Soft Fascist president. Teddy Roosevelt and Woodrow Wilson followed in due course. And the subsequent history is just the working out of the Soft Fascist dynamics. We are now marching in the Parade of the Cronies. The Government and the Mega Corporations own our rear ends now.

ruveyn


I don't mind a strong president, as it can be argued that a weakened executive, along with an emphasis on state's rights, is what had helped lead to the Civil War.

-Bill, otherwise known as Kraichgauer