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Ch. 2: Understanding the First Amendment 
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Post Re: Ch. 2: Understanding the First Amendment
Mr. P, here's something from Thomas Jefferson on the subject of "living" constititutions.

This is from a letter to Samuel Kercheval, written in 1816.

Jefferson writes, "Some men look at constitutions with sanctimonious reverence, and deem them like the arc (sic) of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them , and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. (emphasis added)

Jefferson was very much like that other Thomas (Tom Paine) in that he was not so frightened of republican democracy as some of his contemporaries. He thought each generation ought to have the right to make its own rules for governing its affairs. Indeed, in this letter he suggests an occasion for doing this every 19 or 20 years ought to be provided by the constitution itself.

I'm not so sanguine on this point as Jeffersion. But he clearly belonged to the "living document" school of thought when it came to constitutions.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker




Wed May 23, 2007 1:34 pm
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Post 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.




Wed May 23, 2007 2:30 pm
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Post Re: Ch. 2: Understanding the First Amendment
Yes I did bring it up earlier...but I have been away and picked this up to elaborate as it is an important point in how the courts proceed. But as you now pose, maybe the terms are misleading and not very appropriate in really understanding these modes of thought.

Mr. P.

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Wed May 23, 2007 2:42 pm
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Post Re: Ch. 2: Understanding the First Amendment
Mr.P.: But as you now pose, maybe the terms are misleading and not very appropriate in really understanding these modes of thought.

I do think the terms are misleading, but I don't mean to suggest that they aren't used within general constitutional discussions. I tend to distance myself from all such labels, but most people find such labels useful and appropriate.




Wed May 23, 2007 3:21 pm
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Post Re: Ch. 2: Understanding the First Amendment
BTW, here's the quote I mentioned before. Haiman quoting Justice Brennan: "I approach my responsibility as a justice as a 20th century American not confined to [the] framer's vision in 1787. The ultimate question must be, I think, what do the words of the Constitution and Bill of Rights mean to us in our time" (Haiman, 14).




Wed May 23, 2007 11:25 pm
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Post Re: Ch. 2: Understanding the First Amendment
The real paradox in all of this is that if you go back and look at the Declaration of Independence, Constititution and Bill of Rights, if you analyze what people like Thomas Jefferson and James Madison were saying and writing at the time, if you examine the historical record of what was and wasn't done in cases like the Treaty of Tripoli and the Postal Mail debate, you get a strong sense that those who claim to be in favor of "original intent" ought to be the most stalwart champions of separation of church and state.

Of course, the argument gets made that the Founders never intended the Bill of Rights to apply to state and local governments, but that totally ignores the Fourteenth Amendment and the extension of the limitations in the Bill of Rights to state and local governments.

I think most Americans would agree that each of us ought to have the same rightsl, regardless of where we live. Besides, we only seem to hear that argument made in respect to the establishment clause. I have yet to hear anyone argue that individual states ought to have the right to limit the free exercise of religion.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker




Thu May 24, 2007 11:49 am
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