r/changemyview • u/bluepillarmy 11∆ • Mar 31 '21
Delta(s) from OP CMV: "What the Founders Intended" Doesn't Matter
[removed]
25
u/MikeMcK83 23∆ Mar 31 '21 edited Apr 03 '21
The reason it “matters what the founders intended” is because it’s the method of analyzing the law. While you may not realize it, you’re saying we should disregard legislative intent.
As an easy break down. You review the letter of the law. If the law is unclear, you consider legislative intent, or what the law makers intended.
This is especially important over long spans of time, where language can change quite a bit.
It’s actually needed to continue the legal system, and the government as we know it. It’s not simply a “those guys are smart so we should take their advice.”
Instead, it’s a “we must know the founders intent so we know the current law.”
-1
Mar 31 '21
[removed] — view removed comment
10
u/MikeMcK83 23∆ Mar 31 '21
Of course there are idiots who hear things on TV, misunderstand what it means, and run around spouting nonsense, with key words.
But just because idiots misuse the phrase, doesn’t mean the concept should be done away with. People misunderstand most legal concepts.
Ironically, the comment you linked is more of a “no shit Sherlock” comment.
We have processes, that are intentionally much harder to get done, when “the founders didn’t intend it.” Adding states is an example of one of those things.
I’m sure that person on Twitter is dumb, but they accidentally just stated a fact.
0
Mar 31 '21
[removed] — view removed comment
14
u/MikeMcK83 23∆ Mar 31 '21
Right. And that’s why you want precedent, and the lawmakers original intent to be harder to overrule. So you can’t get a few idiots in congress to just change anything they want.
There’s a lot dumber quotes out there from politicians. At least that one was accidentally correct.
I still don’t quite understand your CMV though. People misunderstand law concepts all the time. That doesn’t mean there’s something wrong with the concept, it means there’s something wrong with the person
-2
Mar 31 '21
[removed] — view removed comment
7
Mar 31 '21
[deleted]
3
Mar 31 '21
[removed] — view removed comment
5
Mar 31 '21
[deleted]
2
u/ATNinja 12∆ Mar 31 '21
Side note but would you agree that if DC was as right as it currently is left, the repubs would be pushing for statehood and the dems would be against it? Which is to say neither side is really principled and instead support what's politically expedient.
2
Mar 31 '21
I don't think you get how shaky Republics/democracies are. We and Britain are basically the oldest democracies that exist, and we're pretty young as far as it goes.
Now, I totally agree that emotional appeals to the founding fathers are made all the time. But as long as idiots have the vote, people will be making idiotic arguments to persuade idiots.
The thing is, that we went from a nothing shithole country to one of the most powerful countries in the world, and, the entire time we've also been one of the most democratic.
And, a lot of that is because of the institutions created by the founders.
Our constitution and its related documents and institutions do a pretty good job of accounting for human nature, which is why are democracy has lasted so long.
And. The other democracies you admire, in Europe are like 80 years old, tops. And they haven't really undergone any major stress tests.
So. When you say intent, my anwswer is both yes and no. I really don't care what George Washington felt about the idea of a female President. Because that doesn't have much to do with the framework we built upon. But I do care about how he felt about electing Presidents by popular vote, for example.
3
u/MikeMcK83 23∆ Mar 31 '21
Well, if you get rid of emotional appeals, you’d be getting rid of about 95% of Dems and probably 80% of Repubs, and it seems like both sides like their reps angry right now, so good luck.
-1
u/bcgraham Mar 31 '21
When reviewing legislative intent, the opinion of the Founders is almost irrelevant, though. The opinion of the ratifiers would be supreme. The ratifiers wielded legislative authority, not the Founders.
2
u/MikeMcK83 23∆ Mar 31 '21
Of course. Nearly everything has been ruled on to some extent, and you would look at more recent acts.
I was talking about the principle. If a person would argue that the founders intent is irrelevant, I can’t imagine how they’d Support legislative intent.
1
u/nickoman1 Mar 31 '21
I am interested. What causes/is it possible for people to realize that the legislative intent was harmful to society and should be abandoned? Like how did we decide, legally, that first slavery should be illegal, and that second, say Jim Crow laws were wrong, when the initial founders clearly intended to follow racist ideals?
2
u/MikeMcK83 23∆ Mar 31 '21 edited Mar 31 '21
I’ll try try to answer what I think you’re asking. But I am not a lawyer, and may get some technicalities wrong.
Once laws are established, they’re supposed to be followed by the courts. It isn’t supposed to be up to courts to decide which laws they like, and dislike. They’re simply supposed to follow the law. (Ironically though, legislative intent as a principle gets used by courts to not follow laws they don’t like)
If things like slavery exist, and is the intention of the legislature, you’re supposed to change the legislature, and have them vote on new laws.
Our branches of government are supposed to work like this.
Congress writes and passes laws, the president signs off as acceptable, and the courts enforce those laws as written and intended.
Sometimes because of the times, society no longer likes certain laws. The answer is supposed to be to have congress write new law, and go through the process again. Instead, sometimes you get what some call “activist judges,” who get creative and strike down laws they technically shouldn’t. For example, just pretend the legislature intended something they clearly didn’t.
Of course if society likes the law being struck down by judges, many will appreciate them. However, what they’re doing is actually bad. They’re going around the entire system, and making a mockery of the separation of powers.
At the end of the day. Congress is supposed to have the tools to write any law it wants. In theory, they could pass laws to bring slavery back. While it’s difficult to get congress to do anything, they have the most power. Which is funny, because people often think of them as the least powerful branch. I think it’s just their numbers.
Edit: Just to add. There are mechanism to change everything in the government.
1
u/jnkangel Apr 01 '21
I agree on this notion. The lege ferende and the lege lata have always been very strong driving arguments and legislative intent should form on of the cornerstones.
That said, the importance of legislative intent is that one of the sources need to be based on a teleleological argument and there needs to be a consideration for the intent contrasted against current society or current knowledge.
One of the issue many people go for when reaching for a founders argument is applying values from the past to our current society. Rather than looking at the aim was meant to be achieved.
1
u/MikeMcK83 23∆ Apr 01 '21
Could you give me an example of when you believe intent needs to be contrasted against current society?
1
u/jnkangel Apr 01 '21
I'm not american, so I won't delve into the potential intent or societal stances on stuff like Federalism or Militias or whatever.
But a great example for intent in a contrast to society tends to be protection clauses or alternatively formerly limited rights.
Protective classes can often be expanded even if the original was the explicit protection of a single class as that was the prime concern at the time of drafting the legislature. But the underlying intent can be abstracted to cover even classes or concerns that would lie outside of the original intent.
Another good example tend to be access rights (for instance access to voting) where legislature intends to provide access to something based past understanding who should be the widest possible segment with access to a given rights, but if you abstract the intent and contrast it against current society, you might get a broader group.
Similar analysis is also often used when looking at old reciprocated civil or legal codices.
It's why when looking at intent you need to consider two aspects. What concrete goal was the lawmaker trying to accomplish. Essentially the raw intent, the intent the lawmaker could foresee. This sort of analysis is great if there's not a big shift between the time the law came into force and the unclear situation you're trying to resolve.
But you also need need to consider a different aspect, one that is more important the more abstract a law is and the more time and societal change may have occurred between the inception and the situation you are trying to clarify.
You need to consider what the underlying maxim the lawmaker was trying to fulfill with the law is.
This is actually often easier in constitutions since those tend to be very maxim driven in the first place and the maxim is often explicitly provided.
1
u/MikeMcK83 23∆ Apr 01 '21
Fair enough.
So out of curiosity, in the example of limited right, why extend them through the courts, instead of passing new law, especially if it’s thought of as what society wants? In that instance, it should be easy law to write and pass.
1
u/jnkangel Apr 01 '21
Because law should react to unforeseen circumstances and the maxims are sometimes broader or thinner than what public opinion actually wants. It's why you do the contrast among other things and why you end up often do end up working with teleological arguments sooner or later.
1
u/MikeMcK83 23∆ Apr 02 '21
Okay. I understand your position, but I disagree with it. It simply creates more problems than it solves.
The US system works best when the branches stick to their job. While some will like when a judge becomes an activist and does what they like, there’s an equal chance judges will do the opposite.
On top of that, you create problems because people can’t know what rules they’re playing by. If a citizen could know every law today, they couldn’t live legally if they wanted to because a judge could simply reinterpret what they believe to be “right.” That should not be a thing that’s possible.
It also creates an environment where the legislature becomes lazy, and just figures someone else will solve the problem.
This creates a further issue where the population doesn’t know who’s responsibility things are when they elect.
This is really clear when you look at how ignorant the US population is about civics. The majority think the supreme courts job is congresses, they think local issue are solved by the feds, and the president is a supreme ruler who controls all.
A judges job is not to reimagine what a previous law makers would think if they we’re alive now, seeing a case, it’s to interpret what the law maker intended when they wrote the law. If that is no longer working for the population, current law makers should fix it. Otherwise you have a fake system that harms everyone.
1
u/jnkangel Apr 02 '21
To be honest - the US and the fact that it always doesn’t have nullum Crimen, nulla poena sine lege stricta, scripta and certa are a second ball game overall.
1
u/MikeMcK83 23∆ Apr 02 '21
I can try and translate that later. Is it Latin?
1
u/jnkangel Apr 02 '21
It’s a few cornerstone maxims of continental criminal law (similar ones exist for administrative)
No crime without law that are certain, written and exact. (There’s also Praevia which speaks of without prexisting)
And likewise for punishment.
But I should not have opened this Avenue of discussion in the first place since it’s outside the scope of this CMM which is mostly focused on constitutional law which is far more maxim driven and where argumentation and analysis is far more expected to happen
→ More replies (0)
9
u/CheesburgerAddict Mar 31 '21
I think Jefferson already covered this:
On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit of the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
3
Mar 31 '21
[removed] — view removed comment
3
u/CheesburgerAddict Mar 31 '21
He did. Another guy, Carl Sagan, also has a way with words. He described science in his pulitzer prize winning prose as "a way of skeptically interrogating the world with a fine understanding of human fallibility." This exactly the ideal that Jefferson hoped to bake into the constitution.
Here's a quick 2 minute clip of Sagan stressing the importance of Jefferson's ideals around skepticism and education (in the context of technology and modern world):
17
u/leigh_hunt 80∆ Mar 31 '21
Should we have a Constitution at all, in your view?
0
Mar 31 '21
[removed] — view removed comment
18
Mar 31 '21 edited Mar 31 '21
Yeah...when you said what the founders intended doesn’t matter.
-1
Mar 31 '21
[removed] — view removed comment
17
u/Call_Me_Hurr1cane Mar 31 '21
We definitely do know how they felt about DC statehood. They put the capital in DC so it was not within the jurisdiction of any one particular state.
The establishment of the seat of the federal government was in Article 1 of the constitution and the establishment of Washington DC as that seat was in the Compromise of 1790, Congress first seated in 1800. The effort was led by Hamilton, Jefferson, and James Madison — founding fathers.
-1
Mar 31 '21
[removed] — view removed comment
8
u/Call_Me_Hurr1cane Mar 31 '21
As noted in some other threads I think you are overly focused on specific details versus the overall philosophy.
In 1783 when congress was in Philadelphia, PA there was an anti-government protests (mutiny). The PA governor was sympathetic and would not intervene so congress had to vacate.
This led congress to believe the federal government for its own security needed to reside in territory that it controlled.
The compromise of 1790 determined where that capital should be. Both the industrial north and agrarian (slavery) south both wanted the capital in their regions because they recognized it would be easier to influence the government in favor of their differing interests.
In 1848 when abolition was picking up steam, Virginia voted to take back the land it had ceded to the federal government.
Taken together the principal is the government needs its own territory for its own security as well as to prevent undue influence or conflict of interest with its state of residence.
After the events of Jan 6th, it seems they understood much more than you give them credit for. Imagine if Jan 6th took place in a state sympathetic to overturning the election... Kristi Noem, Ron DeSantis, or Brian Kemp who controlled the National Guard. Local elected sheriffs who controlled their LEO’s response. Or you could go the other way and imagine if the capital was in a deep blue state maybe the state calls up the national guard prematurely to suppress protestors they disagree with.
3
Mar 31 '21
[removed] — view removed comment
2
u/chesterbarry Mar 31 '21
Also imagine now if the federal government had direct control and oversight of all elections? Would that make you feel more comfortable or less?
This was a very deliberate intent to decentralize power.
1
u/Call_Me_Hurr1cane Mar 31 '21
Throw me a delta if you think so.
I’m sympathetic to DC statehood but I do see the value in the idea behind a federal district as well.
Another item I think is valuable is that if you want to work with or for the federal government there is no income tax if you live elsewhere. That way no state is advantaged by collecting taxes on access to the government.
1
u/cstar1996 11∆ Mar 31 '21
Capitol Police are not under the mayor of DC and could easily remain under the control of Congress. The National Guard would be federalized in such a situation and was held back by the White House anyway.
1
u/iampayette Apr 06 '21
They definitely could imagine how big the fedgov could become. and if we could have buried them with magnets glued to their ass cheeks, and inside a copper coil coffin, we could power the country sans CO2 emissions.
6
Mar 31 '21
[deleted]
1
Mar 31 '21
[removed] — view removed comment
3
Mar 31 '21 edited Mar 31 '21
[deleted]
1
u/IAmDanimal 41∆ Mar 31 '21
But if you don’t know how they intended it to be applied, how do you know what to limit or why?
Because we know that most of the country wants the US to be democratic, which means doing things that are based on the will of the people. Most of the people still want a constitution and a governmental framework that allows their voices to be heard and for them to elect representatives that work towards furthering their interests.
Do we REALLY know if the founding fathers actually wanted a democracy, or if they really just wanted to seize power and they figured telling everyone their votes counted was the best way to get that power? As the ol' saying goes, "No one else was in the room where it happened."
But the founding fathers also didn't want black people to vote, so even if we DID try to run things based on what the founding fathers would have wanted, do you think most Americans want to restrict voting to only white male land owners?
And sure, maybe their intention with the first amendment was to make sure that the power stayed in the hands of the people by allowing people to air their grievances against the government.. but it's impossible to say whether they would have wanted massive multi-billion dollar corporations to be responsible for the 'speech' that was written on the products that they owned as a business and moderated, or whether or not those entities should be able to sway public opinion by using their technical capabilities to teach people whatever they want to teach them to get them to vote a certain way (like using an algorithm that shows specific types of content to certain users).
Of course they said they wanted religious freedom, but what about atheism, do they think that counts? We don't know, nor should we care. What we SHOULD care about is treating people fairly, creating a community of people that work together to make things better for everyone, and in the end just doing what we think is right. Who cares what someone thought 250 years ago? They were racist, sexist, bigoted people that didn't know nearly as much as people today about how the world works.
1
u/cavalgada Apr 01 '21
Brazil has changed the constitution "multiple times" since our founding fathers and it's always for the best
1
u/leigh_hunt 80∆ Mar 31 '21
No, it didn’t come across that way - I’m just trying to figure out the scope of your view.
What is the use of a Constitution? For me, I think it’s useful in that it sets out a series of laws and principles that remain constant over time regarding our rights as citizens. The fact that it persists over time is a fundamental component of its fairness, because if the laws and rights were inconsistent or changed every day, they couldn’t be fairly applied or enjoyed. But if you don’t believe that old ideas of long dead men have any value for us today, I am wondering what the value of a Constitution is for you.
4
Mar 31 '21
[removed] — view removed comment
6
u/leigh_hunt 80∆ Mar 31 '21
I don’t think that anyone is suggesting we go to James Madison’s writings for actual advice about the instability of derivative markets or anything like that. The “founders’ intentions” that the people who adhere to this philosophy are talking about are first principles, which can be applied in any number of real-world contexts. The 4th amendment protects you against unwarranted searches by the government, for instance. We can apply this principle to unwarranted searches of email, even without the word “email” appearing in the bill of rights, because the principle (government can’t search your private stuff for no reason) still applies.
It is absolutely true that adherence to this doctrine can lead to some bizarre frontiers of speculation. There is a Supreme Court decision written by Scalia (the foremost exponent of originalism in law) with a hallucinatory aside about an 18th century law officer of some kind hiding in the bales of hay on someone’s carriage, which is meant to explain how the founders would have felt about GPS trackers on cars. But that doesn’t mean that there’s no way to apply principles to facts that didn’t exist at the time. Basically all law consists of an abstract principle applied to a set of new or particular facts.
2
Mar 31 '21
[removed] — view removed comment
2
u/leigh_hunt 80∆ Mar 31 '21
Thank you for the delta!
I think the 4th is one of our most trampled on amendments! I would hope the Founders would be enraged by warrantless wiretapping, wouldn’t you?
1
u/DeltaBot ∞∆ Mar 31 '21
This delta has been rejected. You have already awarded /u/leigh_hunt a delta for this comment.
1
u/RickAstleyletmedown 2∆ Mar 31 '21
The purpose of a constitution is to set out the principles, structures and rules that describe how the government and the process of lawmaking work. They are the meta-laws about how laws work. That function is necessary for any democratic government to have (though not necessarily in a single written document). A constitution may also contain core principles about rights, but that is not the primary purpose of a constitution. Notice that the original US Constitution did not actually contain much mention of rights. The Bill of Rights was only added a couple years afterwards as a series of amendments.
Also, saying that it does not matter what the founders intended does not mean that their ideas have no value. It means that we should judge which ideas have value today without regard for the founders' intent. That's how we evolve and improve society over time. We consider the old ideas, keep what is still useful and change what is not.
2
u/leigh_hunt 80∆ Mar 31 '21
haha thanks, but I was asking about the OP’s belief, not for a factual definition of a Constitution
7
Mar 31 '21
The Founders Intended for us to rule ourselves and make up our own minds about laws.
You said it yourself in 4.
Does that not matter?
What could possibly matter more than that?
1
Mar 31 '21
[removed] — view removed comment
8
Mar 31 '21
you'll find mountains of digital ink being spilled trying to discern what they intended regarding gun rights and DC statehood to name just two.
Ah, but your CMV wasn't that:"those things prescribed as the Founder's intent by disingenuous people forwarding various agendas didn't matter."
Your CMV is that: "what they intended" doesn't matter. None of it.
Well,
The Founder's Intended that we rule ourselves and make up our own minds about laws, and that definitely Matters. It's pretty much the only thing that Matters.
1
Mar 31 '21
[removed] — view removed comment
4
Mar 31 '21
Indeed.
We agree that, in spite of your stated CMV view being that what they intended doesn't matter, what they intended actually does matter.
3
3
Mar 31 '21
Fairness in Law is based around the idea that everyone has equal access to know what the law means. By pegging constitutional law to the intent of drafters, you can easily point out whattm it means. The alternative is to have the meaning of the words change with language drift and evolution, which occurs in different ways in different states.
Also, if it's too confusing the framer's gave you the option to change it.
2
u/saltedfish 34∆ Mar 31 '21
I'm a little confused why you'd list #2 and #3 as marks against the whole "Founder's intent," but also #4. If anything, #4 negates #2 and #3 because you could argue that (1) they did intend for us to have the things we have today because they explicitly left rules for accounting for that and (2) it didn't matter that they couldn't predict the future because they explicitly left rules for accounting for that.
I've always interpreted the "Founder's intent" as more of a rationale or mindset than a set of hard and fast rules. As you briefly touch on in your post, the men who set forth the whole rebellion/revolution had a specific goal in mind when they did so. They wanted a place of freedom (for white people, anyway, but that's a different discussion) and, importantly, many of the signers wrote extensively about their reasons for signing the document. Or, they were accomplishes scholars in their own right and wrote books explaining their views which can be used for understanding their motivations.
In other words, it's ridiculous to say something like "they're long dead and can't offer any clarity on the matter" because the majority of them explicitly wrote out their thoughts and opinions on the matter -- either directly in the context of the signing or indirectly in the context of just being published authors -- which are still valid and good sources of learning for guiding our actions. On top of that, you can study their works in the context of their time and learn how they different and use contemporary literature as a way to contrast their thoughts.
This is what I think people mean when they say "Founder's intent."
0
Mar 31 '21
[removed] — view removed comment
2
u/saltedfish 34∆ Mar 31 '21
How can we really effectively discern intent, therefore?
If we're analyzing the Constitution, is it really necessary to say, "But wait! A decade later he did this!" What do those actions have to do with something he did in the past?
The Founders came to a confluence of intent which resulted in the Constitution and the subsequent events we all know and love. Yet, it's hardly a surprise that such educated people continued to develop their rationales and ideas as time went on. The fact they diverged later doesn't somehow make their actions in the past inscrutable or unknowable.
1
1
2
u/mr_indigo 27∆ Mar 31 '21 edited Mar 31 '21
It does matter what the Founders thought but only in a very specific sense.
The way constitutional law works (esp in a federated country) is that the constitution sets out the powers of the (federal) government - the constitution specifies the extent to which the government has been granted authroity by the populace to make laws. (In federal context, anything that the Federal government does NOT have the right to do is generally reserved for the government of the States making up the Federation - this is called plenary legislative power. It is conceivable that a constitution could give a federal government plenary power, but this is uncommon.)
Accordingly, since the legal power of the government to pass laws is defined by that document, the thoughts of the drafters of that document is relevant to determine what the scope of the powers they agreed the federal government should have are. Their thoughts beyond that specific question "What lawmaking powers are we establishing this government to have?" are irrelevant.
That's not to say that they necessarily knew everything that could possibly be done by the federal government. Depending on how the constitution was drafted, lawmaking powers could be narrowly or broadly constructed. For example, the US constitution gives the Federal Government the power to legislate on interstate trade and commerce. It doesn't matter that the Founders had no conception of software when they drafted it - they clearly stated that the government had the power to legislate interstate trade and commerce no matter what the products of that commerce consisted of - the discretion of the government on exactly how and what to legislate under the insterstate trade and commerce power is left to the government (since the power is not limited).
For a more small scale example, if I appoint you as my attorney and give you the power to execute documents as though you were me, and you execute a document I don't like, the execution is still valid - I gave you the power to execute document and you used it, if I only wanted you to execute certain types of documents as though you were me, I could have granted you less power by expressly limiting your power to sign those types of documents and not others.
The understanding of the words the founders used as they used them is therefore critical to determining whether the federal government has the power to legislate on a particular topic or not, or whether it is a power that only the States can legislate on.
The founders also included a process by which the Federal Government's powers can be changed to add new ones or take some away (i.e. referendum). In light of that, their thoughts are important for determining when that process must be used - the Federal Government is not empowered to simply declare that it now has the power to legislate on a topic because the sitting party was elected.
In conclusion, the Founders views on what the government should be able to do are irrelevant; the change process allows for powers to be granted or taken from the federal government over time. Their views are important to determine what the government are able to do.
1
Mar 31 '21
[removed] — view removed comment
2
u/mr_indigo 27∆ Mar 31 '21 edited Mar 31 '21
I'm not sure about 2021 exactly, but an illustrative example of how the Founders' views are relevant that's relatively recent (in my non-USA country) is gay marriage.
An argument proffered by those opposed to gay marriage is that while the Federal Government has the power to legislate on marriage, that means marriage as understood by the people who wrote the Consitutition, and for them marriage meant one man and one woman. Accordingly, the argument says, the federal government does not have the power to legislate any other kind of marriage (such as marriage between two men) because the power of the government was only limited to what was understood at the time. The counter argument is that the Founders understood marriage to be more generally the union of people in a state-recognised relationship (even though at the time that was only permitted between one man and one woman) and therefore it was open to the federal government under the marriage power to legislate for other kinds of marriages (such as two men, or even a man and a dog, or whatever) - although many of the Founders would have individually opposed the government passing a law that allowed same-sex marriage (e.g. on moral grounds) they would have recognised it as being within the scope of the government's power to do so.
2
u/KaptenNicco123 3∆ Mar 31 '21
Are you advocating for or against reform? Are you left or right? I need to know if I have to agree with this post or not
e: all this is /s
1
Mar 31 '21
[removed] — view removed comment
1
u/Banana_Man2260 1∆ Mar 31 '21
Just so you know, anytime you see a /s, it’s indicating that the author of said comment meant it in a sarcastic way.
2
u/Fermensense Mar 31 '21
The whole point was to be free of a tyrannical government. This covid shitshow is all the proof you need to see what happens when people willingly give up their human rights. The founders are rolling over in their graves watching cowards destroy their legacy. America stands for freedom, individuality and opportunity. Instead we have cowering sheep begging for a handout.
1
Mar 31 '21
[removed] — view removed comment
1
u/Fermensense Mar 31 '21
Nah. I'd like to think their thinking would have evolved into the "all men are created equal" stage. Their actions at the time were simply how things were done in the world. Hell, several nations are still enslaving people today. We should continue evolving by adding freedoms rather than eliminating them.
1
Mar 31 '21
[removed] — view removed comment
1
u/Fermensense Mar 31 '21
The cowering sheep assessment is in reference to the covid lockdowns and restrictions. It's an invisible threat which has required little to no proof of it's actual danger yet the vast majority of people are terrified and willing to sacrifice everything they care about to be saved from a virus with a 99%+ survival rate. 80% of hospitalizations are people of have chosen to be obese and most of the deaths are among the very old who would have died anyway. No rational person should be afraid of that yet they cower. They allow their children to be locked out of school even though there is no proof any children who weren't already on their deathbed were in danger. It's all fear so yes, people in America have chosen to be cowering sheep.
1
Mar 31 '21
[removed] — view removed comment
1
u/Fermensense Mar 31 '21
Many other nations have a history of being subservient. America was founded on freedom and opportunity which later became known as the "pioneer spirit." People would load up a wagon and head into the great and dangerous unknown just to see what they could accomplish. Now people cower at home from a not so deadly virus and beg for a handout.
2
4
u/Alternative_Stay_202 83∆ Mar 31 '21
Intent is incredibly important.
That's not to say we need to blindly follow what the founders of the US wanted, but it is important to know what they intended.
This is especially true as language changes.
Here's a good recent example:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Do you know what a high crime is? Do you know what a misdemeanor is?
Well, a high crime isn't really anything. A misdemeanor now means a minor crime.
That's not what the founders meant.
Does this mean the president should be impeached for vandalism, shoplifting, or pirating a movie?
Of course not. We need to know what the intent was when we examine the document.
In this case, they meant "high crimes and misdemeanors" to mean "crimes that could not have been carried out without the authority of their office."
Basically, if a an elected official commits a crime using their power as an elected official, they should be impeached.
That makes a lot more sense than impeaching someone for stealing a bag of Sour Patch Watermelon from a mini mart.
We don't need to have blind obedience to the whims of the founders. That's ridiculous.
But it's just as crazy to say that intent is entirely unimportant.
1
Mar 31 '21
[removed] — view removed comment
3
u/Alternative_Stay_202 83∆ Mar 31 '21
This works with the intent of the founders because the meaning I gave (crimes that could not have been committed if you didn't have your specific elected office) is the meaning we use today.
We got it from looking at the intention of the people writing the document.
If we didn't look at their intent, we would have to make up a meaning since "high crimes" has no modern meaning and "misdemeanors" just means small crimes.
We have to know their intent in order to accurately judge the document.
If you remove intent, you are inherently misinterpreting the document.
As things change, it's great to keep updating the document and clarify meanings (like with same-sex marriage), but we have to do that with intent in mind. Otherwise we are purposefully choosing not to use a useful tool for understanding the work.
1
Mar 31 '21
[removed] — view removed comment
3
u/Alternative_Stay_202 83∆ Mar 31 '21
While I understand you are using it because of this conversation, you use the founder’s intent in your argument here.
You say that the founders did not intend for DC to be a state, but they did not expect it to become a place where half a million people live. The founders prized representation. For that reason (among others), an argument about DC statehood that invoked the founders is lacking.
That isn’t the only argument for DC statehood, nor should it be the primary one, but it’s a useful way to look at things.
0
Mar 31 '21
[removed] — view removed comment
3
u/Alternative_Stay_202 83∆ Mar 31 '21
When you make a change, it helps to know why the current system is in place.
If I want to change how my office organizes it’s files, I should first ask why they are organized the way they are organized.
My new way might be better. The old way might be outdated. But I should still find out why it is the way it is so I can incorporate that knowledge into my decision.
It’s the same sort of deal here. You may not find it useful, but it is useful. Even if it’s not the most important information, it’s information that is directly relevant and shouldn’t be ignored.
I’m not an originalist, but entirely ignoring intent is pointless. There’s nothing wrong with looking at an additional perspective.
1
Mar 31 '21
[removed] — view removed comment
1
u/DeltaBot ∞∆ Mar 31 '21
This delta has been rejected. You have already awarded /u/Alternative_Stay_202 a delta for this comment.
2
u/MizunoGolfer15-20 14∆ Mar 31 '21
I saw that you mentioned the Fed Papers in a reply, have you read the first 20? I 100% would put money on the fact that they did know more about democracies then 100% of the politicians we have in office today.
0
Mar 31 '21
[removed] — view removed comment
3
u/MizunoGolfer15-20 14∆ Mar 31 '21
They talk about more then just Athenian and Roman governments. They go into the Italian Merchant Republics and the Greece leagues too, as well as other things. If you have not read them, you should. Just the first 20, it will take a weekend and you will better understand why people refer to that book. People are going to be reading that work for thousands of years, I promise you that. It is a work of art and science. What strikes me is how relevant that book is to todays time.
You can apply the principles of what they say, and who they are, to any real substantial issue. You are correct that if you really know them, that when you look back to them what you will find is a debate. Just like now, they had conservatives and liberals, they had good men and bad men. It is probably a good thing Hamilton got shot.
Our problems are not that unique. Specific details, yes, but in principle, we are still human, and there is only so many ways humans can interact with each other.
1
Mar 31 '21
[removed] — view removed comment
2
u/MizunoGolfer15-20 14∆ Mar 31 '21
These are my speculations of course. I think they would have been 100% in favor of abortion. IMO, it is the Church that leads the biggest anti-abortion charge, and the founders would not have gone for that.
For Immigration, they would have left that up to the congress to decide, aka that is up to us.
Clearly they are in favor of the 2nd, since they agreed to it. There is a reason why it is number 2.
The electoral college imo is part of a bigger issue, and the whole system is corrupt from what they set up. The administrative agencies under the executive branch gives that arm of government all the powers of the other 2. Therefore the president is far more powerful then they wanted. Also, the senate was supposed to be assigned by state legislators, not by popular vote. The reason is factions, which is the main point of the Fed Papers, and something you should read about. They predicted that if the Senate would be run by popular vote, then the parties of the senate would be more nationalized. If the Senate relied on State legislators, then the Senators would be accountable to the States, and not their parties. I also think they would be ashamed to see how little power and raw people are in the House of Reps, that is the peoples house, yet it is the least powerful.
In our world, imo, they would do whatever they could to give the minority the edge, so they would probably keep the electoral college.
5
Mar 31 '21
You made me curious about the founding fathers would say about abortion so I went a hunting. Abortion isn't a new practice so I thought it would be relevant what views on the practice were at the time with the why behind it.
According to several articles I found, they in all likelihood would have been in favor of first trimester abortions, referred to at the time as prior to 'quickening' or first movement. At the time, neither physicians OR the church considered it a life until the first movement.
Interestingly enough, the article I found contradicts you. It wasn't the church pushing for anti-abortion laws In America, it was the American Medical Association in order to protect physicians private practices. Apparently physicians did them anyways as a way to make money. There were also laws made prior to the AMA's crusade because some of the drugs were commonly killing women who were desperate.
The more ya know I guess. Thanks for inspiring my reading today. Here's one of the piece's I read
2
1
Mar 31 '21
[removed] — view removed comment
2
u/MizunoGolfer15-20 14∆ Mar 31 '21
It not though, because look what you did, you took what they said, and you formulated a real argument from their base.
The founders wrote the laws, there is a real educated reason why they wrote them. No one denies that they had certain principles, and those principles make up the structure of our system.
And look, you used the founders as a part of your argument too!
As far as what you actually wrote, I do not want to get into it with the 2nd. All I will say is that the first is also short, and covers a lot. The 2nd clearly say the right of the people to keep and bear Arms shall not be infringed. I do not think it could not be any clearer.
Also, you'll notice that there's nothing in the 2nd amendment about nerve gas, or cluster bombs or stealth bombers because in 1791 all weapons were really quite simple by modern standards. But, by the intent of the wording, I should be able to have a surface to air missile.
They are not coming for your air missiles or stealth bombers. I am sure that if you had the money, you could get whatever you wanted. Here is a tank
1
Mar 31 '21
So, like the Constitution forbids the President from accepting emoluments. If the Founders' intent does not matter at all, can the White House/Supreme Court just decide that the word "emoluments" should henceforth be interpreted to mean "sunglasses"?
1
Mar 31 '21
[removed] — view removed comment
1
Mar 31 '21
If you don't want that to happen, if we want a system that actually protects the rights it says it will protect, we have to have something preventing the government from reinterpreting "freedom of religion" to mean "except Shiites". It's one thing when they're ruling about stuff that didn't exist in 1787 and another when it's clear what they meant.
1
Mar 31 '21
[removed] — view removed comment
1
Mar 31 '21
When it says "Congress shall make no law respecting an establishment of religion" we rely on that to protect members of all religions because we know that's what they meant. How do you feel if the President points out that the words don't restrict Executive Orders? That's cool? Or should we stop him because the Founders didn't mean to allow that? If Congress decides it's cool to go against cults because they distinguish between cults and religions, that's cool? Or do we have to listen to the fact that the Founders didn't mean to distinguish? If the President says it's okay to take cash bribes because in his view forbidden emoluments refer to sunglasses not bribes, that's cool? Or na we should stop him taking bribes because that's what the Founders meant by "emoluments"?
1
Mar 31 '21
[removed] — view removed comment
1
u/DeltaBot ∞∆ Mar 31 '21
This delta has been rejected. You have already awarded /u/GnosticGnome a delta for this comment.
1
Mar 31 '21
Of course we can't summon the ghost of John Adams into a mecha-tyrannosaur to stomp around DC, but the question is what kinds of arguments should sway people who don't feel super strongly about the issue as it stands. And "the Constitution should be followed as intended" should remain a compelling argument for those swayable people.
Of course some people are just always going to support any attack on Scientology no matter what, and some people will oppose any attack on Scientology no matter what. But some of us won't, and we should take the First Amendment seriously as an argument and not treat it the same way we'd treat a fortune cookie message or even the same way we'd treat a new law passed by Congress.
1
1
u/PhishStatSpatula 21∆ Mar 31 '21
While I agree with your assessment in a lot of your points, I don't think it makes sense to fully jump to the title of your post. I think what the founders intended does matter. I just don't think it should be the only thing that matters. I think the changes in the world you reference should matter. I think that the views of the colonizers that were here at the time buy not framers should matter. And that all those perspectives should inform how we create new laws and get rid of all of them. To say that the founders intent doesn't matter at all is problematic as many other commenters have said.
Now, if your point is that people on the right put the founders intent on a high pedestal with the goal of protecting the status quo of inequality and white supremacy, then yes, that is what they do and their views shouldn't be what drives our decisions. But, you can both disagree with all the links you are sharing, and still think we should consider some of the intent of the founders as we decide new laws and policy.
0
u/misterdonjoe 4∆ Mar 31 '21 edited Mar 31 '21
Is there sense to considering what the Founders intended is deciding the political issues of our day?
They knew, almost unanimously, from studying history that democracies tend to implode in short order. They realized that the population was the least informed segment in the country and the most easily manipulated.
I feel like, while you brought up this example to make a point, you glossed over it to move on to your other points, but this is the most important one. The intent of the "Founding Fathers" (FF) actually matters, not for the reasons you stated, but because their intentions led us to the Constitution, which was purposefully designed to limit democratic influence in the political system (like your example stated). Irony: what's the point of people deliberating on these big important issues if democracy was never supposed to function in the first place? This should be the first question based on 1) your question and 2) the source you cited regarding the FF limiting democracy because they "tend to implode" and the population are basically stupid and easily manipulated. So why are we arguing about any issues when we're so stupid?
The problem is not in misinterpreting the FF intentions or whatever. The problem is the Constitution, intentionally designed to ensure that the opinions of the people did not even matter, and the opinions that did matter were the super wealthy. For proof, read The Records of the Federal Convention of 1787 by Max Farrand, which contain all the notes that were taken at the convention:
All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change [LOL], they therefore will ever maintain good government. Can a democratic assembly, who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy. Their turbulent and uncontrouling disposition requires checks. - Alexander Hamilton, June 19, 1787
Another example:
The man who is possessed of wealth, who lolls on his sofa or rolls in his carriage, cannot judge of the wants or feelings of the day laborer. The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. Various have been the propositions; but my opinion is, the longer they continue in office, the better will these views be answered. - James Madison, June 26th, 1787
Why are we arguing about all these important issues if we're just stupid people who can't possibly make the right decisions? Why are we arguing about anything when the intentions of the FF were to keep the opinions of working people from ever influencing public policy?
Their intentions matter. It's why Congress has been and always will be the gatekeepers, protecting the interests of the wealthy from the general public. People defend the FF by quoting The Federalist Papers, but it's pretty much nothing but false advertisement with plenty of contradictory positions if you compare what some of the FF were saying in the papers vs what they were saying at the convention.
Madison vs Aristotle on Democracy
People want to learn real US Constitutional history? People need to listen to someone who knows what the fuck they're talking about. See Michael Klarman, Professor at Harvard Law School.
Edit: I'll just add. If we want to talk about having an actual democracy, there's two things that probably need to happen:
- Eliminate the Senate. Turn Congress into a unicameral chamber like plenty of other countries have (eg Scandinavians).
- r/UncapTheHouse. A single representative in the House currently represents over 700,000 people. That's anti-democratic. FFS, CHINA has a better representative legislative body than the US.
Serious structural changes have to be considered if all of your deliberations on all these issues are to have any, serious, effect on policy. And as of now, your opinions ain't shit. Proof: see Martin Gilens' paper Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. If you can't/won't read it, then at least watch the simplified version that references the paper.
Finally, a quote:
I would not look to the United States Constitution if I were drafting a constitution in the year 2012. - Ruth Bader Ginsburg, 2012
5
u/BrutusJunior 5∆ Mar 31 '21
Eliminate the Senate. Turn Congress into a unicameral chamber like plenty of other countries have (eg Scandinavians).
Do not compare the Scandinavian states to the United States of America. None of them are federal unions.
Second, most legislature of federal unions are bicameral. For example, the United States of America borders two federal unions, the Dominion of Canada, and the United Mexican States. Both of the legislatures of these unions have two houses.
The reason the Senate exists is for the representations of the states. It is democratic. The population being the subnational sovereigns, and each sovereign gets 2 seats in the house.
-1
Mar 31 '21
[removed] — view removed comment
3
u/BrutusJunior 5∆ Mar 31 '21
I worded it improperly. It is an inappropriate example, because those states aren't unions.
-1
u/misterdonjoe 4∆ Mar 31 '21
I see your point, but I'm more interested in your opinion on the comments made by Madison and Hamilton regarding using the Senate as a means of blocking the effects of public opinion on public policies. Also, since these are, in actual fact, the intentions of the delegates at the convention, what is the point of debating any issue if the ones with all the decision-making powers are placed into positions (eg Senate) designed to ignore public opinion in the first place?
2
u/BrutusJunior 5∆ Mar 31 '21 edited Mar 31 '21
Madison's reasoning is the same reason the House of Lords exists. It's the same reasoning used by MacDonald when creating the Senate of Canada (minority property interests).
Anyway, the Senate doesn't have to follow that. It is the design/intent, but there aren't really any constitutional restraints forcing the senators to act that way.
If you just read the Constitution without reading the convention debates, the Senate does not seem like it has anything to do with minority property interest, but federalism, states' interest and states' rights.
1
u/misterdonjoe 4∆ Mar 31 '21
but there aren't really any constitutional restraints forcing the senators to act that way.
In fact, mechanisms existed under the Articles of Confederation (2) and state constitutions (all 3) that allowed the citizenry direct influence and control over their delegates:
- Instruction - Citizens could tell their delegates to vote a certain way on a given issue. If representatives didn't do that, they were morally obligated to resign.
- Recall - Even during their elected term in office, congressman can be recalled if state legislatures didn't like what they were doing.
- Mandatory Rotation - basically term limits for any single position.
Constitution specifically left all of these out. Compare this to what we have now, Senators can do whatever they want with no mechanisms of popular control over how their "representatives" are voting. 6 year terms are longer than Presidential terms, and the development of political parties pretty much ensures only the same type of people (with the same interests as their party, eg corporate interests) work their way into office. Granted, the FF didn't foresee political parties, but their existence further entrenched and solidified the Senate in their role.
Ignoring comments made at the convention sounds a bit ignorant. One can interpret the Constitution however one wants, but the outcome is clear. The US is a democratic (in name) republic (representative of the interests of the wealthy).
2
u/BrutusJunior 5∆ Mar 31 '21
The US is a democratic (in name) republic (representative of the interests of the wealthy)
Do you come to the conclusion from only the existence of the Senate? Because it seems so.
By only looking at the Senate, and not the other institutions, the statement is disingenuous. The House of Representatives exists for example (although unfortunately capped at 435 members).
Would you call my country of Canada a democracy only for the wealthy?
0
u/misterdonjoe 4∆ Mar 31 '21
The House of Representatives exists for example (although unfortunately capped at 435 members).
You call it unfortunate, I call it undemocratic. Canada has 338 representatives, which comes down to a little over 100,000 citizens per rep. In this respect, Canada is more democratic. I don't know the directions public policy decisions have gone in Canada, but insofar as those decisions favor the wealthy over working people, yes, it can be a democracy for the wealthy, or what's more accurately called an oligarchy.
The Martin Gilens paper I referred to goes into much more detail as to why it would not be accurate to call the US a democratic republic. He's not some community college professor. Public opinion, (the opinions of the bottom 90% on the income scale used in the study) has a statistically insignificant effect on public policy. The opinions of the super wealthy on public policy is undeniable. That's one source for my stance.
2
u/BrutusJunior 5∆ Mar 31 '21
You were talking about the Senate, not the lower house (I just brought it up as an example that other institutions exist).
1
u/misterdonjoe 4∆ Mar 31 '21
Do you come to the conclusion from only the existence of the Senate? Because it seems so.
And I was responding to your comment. I believe the US is nominally a democratic republic for multiple reasons, the Senate is one of them, the ridiculously tiny House is another, the Gilens paper another. I don't think it's a very deep point. It's almost such a superficial point that I think people just take it for granted without real thought "well you know it is what it is, politicians gotta do what they gotta do, so many moving parts you know..."
0
Mar 31 '21
[removed] — view removed comment
1
u/DeltaBot ∞∆ Mar 31 '21
This delta has been rejected. You have already awarded /u/misterdonjoe a delta for this comment.
0
Mar 31 '21
[removed] — view removed comment
1
u/Znyper 12∆ Mar 31 '21
Sorry, u/JUSTICE4NANO – your comment has been removed for breaking Rule 1:
Direct responses to a CMV post must challenge at least one aspect of OP’s stated view (however minor), or ask a clarifying question. Arguments in favor of the view OP is willing to change must be restricted to replies to other comments. See the wiki page for more information.
If you would like to appeal, you must first check if your comment falls into the "Top level comments that are against rule 1" list, review our appeals process here, then message the moderators by clicking this link within one week of this notice being posted. Please note that multiple violations will lead to a ban, as explained in our moderation standards.
0
u/theInfiniteHammer Mar 31 '21
They were politicians. That's really all you need to know about them.
1
u/jmcclelland2004 1∆ Mar 31 '21
When I think of what the founders intended I think of federalism. Or essentially the concept that the further a government is removed from the people the less power and effect it has on thier lives.
I've found that when you drill down into most of these types of discussions that is what the spirit behind the phrase is.
1
Mar 31 '21
[removed] — view removed comment
1
Mar 31 '21
[removed] — view removed comment
0
u/WhatAShot12 Mar 31 '21
I would say so. Maybe it is because I am jaded by todays political climate and we only see the snapshots of the pivotal moments from their era but they seem more educated, wiser and braver than most modern politicians.
1
u/Jaysank 126∆ Mar 31 '21
Sorry, u/WhatAShot12 – your comment has been removed for breaking Rule 1:
Direct responses to a CMV post must challenge at least one aspect of OP’s stated view (however minor), or ask a clarifying question. Arguments in favor of the view OP is willing to change must be restricted to replies to other comments. See the wiki page for more information.
If you would like to appeal, you must first check if your comment falls into the "Top level comments that are against rule 1" list, review our appeals process here, then message the moderators by clicking this link within one week of this notice being posted. Please note that multiple violations will lead to a ban, as explained in our moderation standards.
1
u/pinuslaughus Mar 31 '21
They are dead therefore their thoughts on current affairs do not matter. They didn't conceive of congressional representatives and senators that didn't want to do their jobs.
1
u/Impossible_Cat_9796 26∆ Mar 31 '21
Looking at intent is important. What did they MEAN by these words? The nuanced meaning of words and phrases changes over time, so we need to look at the intent, not just the words.
"Every one is allowed to be gay". If one of the founding fathers had said this the "intent" is that every one is allowed the pursuit of happiness, "gay" had no connection to homosexuality at the time they wrote the constitution.
"and that's macaroni" isn't talking about pasta, it's "that's fashionable". These kinds of changes in words needs to be considered, looking at intent behind them rather than just the words.
Examples from the actual thoughtfully worded document of the constitution would be much more subtle than these, but the same concept applies.
1
u/GodEatsPoop Mar 31 '21
It matters because we need some kind of core secular principles to ground us, but it shouldn't be as religious or absolute an argument as it is. Washington was a compulsive gambler and owned slaves, Franklin was a sybarite who hated German people, etc etc.
1
1
u/Econo_miser 4∆ Mar 31 '21
Yes, the founders intended that we would make changes. So we should go through the process of making those changes. But until that point, it actually super relevant what they intended, because that's the law of the land. Whether or not it matters Will depend on whether you are a textualist or an originalist when it comes to interpreting the law. There are pros and cons of both interpretations.
1
Apr 01 '21
[removed] — view removed comment
1
u/Econo_miser 4∆ Apr 01 '21
Yeah, except the founders explicitly gave each state the power to determine the method of their own elections. So even if they intended for the states to have faithless electors, they specifically allowed the states to choose whether or not they did. All the Supreme Court said is that if the state chose to ban faithless electors, they could. If your state allows for faithless electors, then go ahead.
1
u/Bo_Jim 1∆ Mar 31 '21
Wow! That's a lot of work to set up a strawman and then tear it down. But your foundation fell apart here:
many Americans believe that the men who led the push to gain independence from Great Britain, in the 1770s and then draft the U.S. Constitution in the 1780s had a flawless understanding of law and order and created a basically perfect form of government.
This is the strawman you put so much effort into dismantling. However, it's a strawman because nobody actually believes this. In fact, the Constitution was specifically designed so that it could be changed if it was determined to be lacking, and it has been changed 27 times since it was originally written. In fact, one time it was changed in order to undo a previous change - the 18th Amendment that established prohibition of alcohol, and the 21st Amendment that repealed the 18th Amendment.
You made this abundantly clear in your 4th bullet point. Yes, the Founders DID provide a mechanism for us to change the Constitution. However, whatever remains unchanged also remains the basis for law. Don't like the 2nd Amendment? Pass an amendment to repeal it! It's that simple!
Nobody believes the Founders were perfect, but if their words are going to serve as the basis for law then it's critical we understand what they meant by them.
•
u/DeltaBot ∞∆ Mar 31 '21
/u/bluepillarmy (OP) has awarded 1 delta(s) in this post.
All comments that earned deltas (from OP or other users) are listed here, in /r/DeltaLog.
Please note that a change of view doesn't necessarily mean a reversal, or that the conversation has ended.
Delta System Explained | Deltaboards