Re: Ch. 2: Understanding the First Amendment
Mr.P.: I hate to drag up a point from earlier on in this thread, but I am trying to get back involved with this discussion...
No problem at all, Mr. P. Drag away...
Mr. P.: We cannot possibly think that people hundreds of years ago could write such a strong document that it would anticipate how things would be and how certain thoughts would apply to people hundreds of years in the future.
Speaking of dragging up old discussions, you had written this earlier in the thread. And I wanted to note that this was certainly true for the Framers of the Constitution; they did not anticipate the document, or the Union, would necessarily withstand all that it has. And it could be argued that rather than changing the document to fit our contemporary needs, some of the Framers at least would have preferred the nation to rewrite the document for those purposes. (After writing this I saw George's statement that Jefferson was one such founding father.) For instance, the Framers never considered television, the internet, video games, even radio when constructing the freedoms of the First Amendment. Because the Constitution does not definitively address such freedom, decisions are left to the courts to decide what is constitutional, which can often be highly subjective decisions. Some feel it is too subjective for our courts to address, and out of the purview of the lesser of the three branches of government.
Mr. P.: How CAN we accept an 'original intent' view. I just do not see the benefits of looking at the Constitution as anything BUT a 'living document'. It would be dangerous, IMO, to do otherwise.
I think George hit this squarely on the head. Living document proponents do not discount the history or the ideology in which the Constitution and each of its subsequent Amendments were born. They acknowledge and consider the history but do not feel bound or constricted by the history. This is why "living document" and "original intent" are such inappropriate terms. Of course both sides consider the history of the Constitution; and, despite their claims, "original intent" proponents cannot possibly know in every situation what the Framers intended, even if we chose to be bound by that intent. I once read from a constitutional scholar (though I very unfortunately have not been able to find the quote again) that he could not help but think "original intent" is often used as an excuse to justify antiquated, and often prejudiced, perspectives. I remember there is a quote early in the book (which I do not have on hand at this moment) from one of the Justices that states essentially that his 20th century knowledge is not bound by 18th century ideas, or something to that effect.
Garicker: For example, nothing in my reading suggests the founding fathers would have supported the idea of a "Pledge of Allegiance" to the national flag.
You're probably right here. The anti-Federalists would have fought such a pledge tooth and nail. And the Federalists, always willing to accommodate whenever the accommodation was not significant, would have been unlikely to push for such a ritualistic display of patriotism. Regardless, they certainly would not have aligned any national pledge with religion, specifically placing the nation under the auspices of "God."
Garicker quoting Jefferson: Some men look at constitutions with sanctimonious reverence, and deem them like the arc (sic) of the covenant, too sacred to be touched.
Lovely quote, George. I think it's apropos that the very people who push for "original intent" readings of the Constitution, at least contemporarily, are often those pushing for Christianity's influence in government. It seems likely that the same minds who want to tie us to, as Mr. P. puts it, "a book that is +/- 2000 years old" seem willing to tie us to political, social and legal ideas that are over 200 years old.