Write your own Amendment - Page 4 - U.S. Politics Online: A Political Discussion Forum

jviehe · #46 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by Disillusioned_1

Doesn't sound like me? I guess I'm sneaky that way!

I think large groupings of people shouldn't arbitrarily be denied the same freedoms and protections that individuals have, however I feel there should be some allowance for congress to pass laws restricting certain behaviors of corporations. I do agree "not necessarily" is probably too vague, but what the hell this is just a rough draft.

Did you like (D)?

I like A and D, the intent of C, and B isnt really neccesary. Corps are hybrid in that they are sometimes treated as people, sometimes not. And youd have to add some more stuff to even start to allow congress to regulate them. Right now they are only allowed to regulate trade between states, not the activities of corporations in states, not that it stops them.

Interestingly, most of the amendments proposed so far have the intent of limiting govt, not expanding it. What does that say?

AJG · #47 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by jviehe

Interestingly, most of the amendments proposed so far have the intent of limiting govt, not expanding it. What does that say?

Well, many Constitutional Amendments limit what government can do to protect certain rights, It also defines the powers of Congress, the President, etc. For the most part the Constitution was meant to impose restrictions on government by specifically saying what it can and cannot do. Otherwise they revoke what government was previously restricted from, or redefines the powers of the different branches (judiciary, legislative, and executive) to better balance the three way system. I doubt it was ever meant to impose restrictions on what corporations or what the general population can do (for the most part).

jviehe · #48 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by AJG

Well, many Constitutional Amendments limit what government can do to protect certain rights, It also defines the powers of Congress, the President, etc. For the most part the Constitution was meant to impose restrictions on government by specifically saying what it can and cannot do. Otherwise they revoke what government was previously restricted from, or redefines the powers of the different branches (judiciary, legislative, and executive) to better balance the three way system. I doubt it was ever meant to impose restrictions on what corporations or what the general population can do (for the most part).

Yes, but isnt it interesting that most of the posters want to amend the constitution to more clearly enforce the limitations we thought were there, rather than expand the things they think govt should be doing? Then again liberals generally think the constitution is just paper and should be disregarded, so no surprises from them.

O'Sullivan Bere · #49 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by AJG

Speaking as a lawyer, did you ever have to deal with problematic laws that became so convoluted over time that they lost their original meaning?

The meanings and applications of laws are regularly contested and I have loads of experience in dealing with that.

Specific language generally speaks for itself. Most of the time, it's really a case of determining the application of poorly, ambiguous and/or overbroadly written statutes or a set of statutes that fail to be properly reconciled with others on the books that create a confusion or conflict of laws in a given situation. Insofar as constitutional provisions, the main issues of dispute usually concern the application of boilerplate concepts. For example, Section 1 of the Fourteenth Amendment of the US Constitution says:

Quote:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment to the United States Constitution - Wikipedia, the free encyclopedia

The first sentence is clear and its meaning doesn't leave much room for argument. The second, however, contains broad boilerplate concepts of guarantees. The broader any language is in a constitutional provision or statute, the more leeway there is for making arguments whether or not subject matter at issue falls within such language.

It's important to remember that in constitutional and statutory law, what is written is what matters. The law is the written words. As for 'original meaning,' it's a popular argument and consideration when dealing with language that is not specific as for why the court should ultimately decide a question. However, what particular people behind the ratification/enactment process particularly felt how they should or should not operate if they were specifically asked is not binding, and many times not even fairly or accurately ascertainable or fair to be attributed to everyone else involved in the process. And if something that was 'intended' is omitted in the writing, once again, the words are all that's going to matter. Thus, it's incumbent upon those who bring the written law into force be as specific as possible about whatever they may or may not intend if they only desire a rigid and specific meaning to whatever it is they wish to make into written law.

Marcus1124 · #50 (**permalink**) 3 Weeks Ago

Quote:

O'Sullivan Bere
The first sentence is clear and its meaning doesn't leave much room for argument. The second, however, contains broad boilerplate concepts of guarantees. The broader any language is in a constitutional provision or statute, the more leeway there is for making arguments whether or not subject matter at issue falls within such language.

It's important to remember that in constitutional and statutory law, what is written is what matters. The law is the written words. As for 'original meaning,' it's a popular argument and consideration when dealing with language that is not specific as for why the court should ultimately decide a question. However, what particular people behind the ratification/enactment process particularly felt how they should or should not operate if they were specifically asked is not binding, and many times not even fairly or accurately ascertainable or fair to be attributed to everyone else involved in the process. And if something that was 'intended' is omitted in the writing, once again, the words are all that's going to matter. Thus, it's incumbent upon those who bring the written law into force be as specific as possible about whatever they may or may not intend if they only desire a rigid and specific meaning to whatever it is they wish to make into written law.

When discussing "Original meaning", it is important to distinguish between two very different concepts. The first, and more legitimate is original understanding; what were the words generally understood to mean by society at large when they were adopted. The second, and far less reputable is original intent, which often times leads courts to flat out ignore the explicit wording of a statute in pursuit of some unwritten "intent" of the lawmakers.

The focus on "intent" of the legislature goes back to Blackstone's commentaries on the laws of England, early writings on the proper method of interpreting legal texts by courts which emphasizes the "intent" of the legislature. However, when discussing this these same writings emphatically state that the clearest indication of the intent of the legislature is the words they actually used when legislating (in other words original meaning). Blackstone:

Quote:

THE fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and confequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorfl, which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs “of her body, being protestants,” it becomes necessary to call in the assiftance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

2. IF words happen to be still dubious, we may establifh their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the conftruction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must refort to the same law of England to learn what the benefit of clergy is: and, when the common law censures fimoniacal contracts, it affords great light to the subject to confider what the canon law has adjudged to be simony.

3. AS to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclefiaftical persons to purchase provisions at Rome, it might feem to prohibit the buying of grain and other victual; but when we confider that the statute was made to repress the usurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provisions, we shall fee that the refsraint is intended to be laid upon such provisions only.

4. AS to the effects and confequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf m, which enacted “that whoever drew blood in the streets should be punifhed with the utmoft severity,” was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the ftreet with a fit.

5. BUT, lastly, the most univerfal and effectual way of discovering the true meaning of a law, when the words are dubious, is by confidering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewife to cease with it. An instance of this is given in a case put by Cicero,or whoever was the author of the rhetorical treatise inscribed to Herennius n. There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick pasenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation.

FROM this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius o, “the correction of that, wherein the law (by reason of its universality) is deficient.” For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cafes, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himfelf would have excepted. And these are the cases, which, as Grotius expresses it, “lex non exacte definit, fed arbitrio boni viri permittit.”

Equity thus depending, essentially, upon the particular circumstances of each individual cafe, there can be no establifhed rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. And, on the other hand, the liberty of confidering all cases in an equitable light must not be indulged too far, left thereby we deftroy all laws, and leave the decision of every queftion entirely in the breast of the judge. And law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

The first bolded phrase is the essence of Justice Scalia's orthodoxy.

The bolded part at the end underscores that it is not the job of a judge to merely decide what is just, even overriding laws they personally view as unjust. Judges are not understood to be empowered with broad plenary power to meet out "justice" or "equity", but only to apply the laws as written in an equitable and just manner.

Disillusioned_1 · #51 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by jviehe

I like A and D, the intent of C, and B isnt really neccesary.

I'm not sure if you're saying you like the intent of C or if you're saying C isn't really necessary.

In case the latter interpretation is what you meant, I hope its clear what I intended with C.

"C. Congress's pay shall decrease by the same percentage as the federal deficit and be calculated each fiscal year. Pay raises for the congress are determined by the president no less than 6 years in advance."

This way congress will basically be forced to balance the budget. If the deficit is 10% beyond the the money available to pay federal budget, then congress's pay is cut by 10%.

Now that wont work unless you limit congress's ability to give themselves raises (because they would just vote to give themselves a 25% pay raise to counteract the 10% cut). So the president, as a balance of power, is the one to determine congressional pay, but to keep it from being a political issue and trade for votes, the president can only approve pay raises for congressmen outside of his own presidential term. I thought about having the Judiciary determine congressional pay, but that seemed very weird to contemplate having the Judiciary take on an unconventional role like that.

jviehe · #52 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by Disillusioned_1

I'm not sure if you're saying you like the intent of C or if you're saying C isn't really necessary.

In case the latter interpretation is what you meant, I hope its clear what I intended with C.

"C. Congress's pay shall decrease by the same percentage as the federal deficit and be calculated each fiscal year. Pay raises for the congress are determined by the president no less than 6 years in advance."

This way congress will basically be forced to balance the budget. If the deficit is 10% beyond the the money available to pay federal budget, then congress's pay is cut by 10%.

Now that wont work unless you limit congress's ability to give themselves raises (because they would just vote to give themselves a 25% pay raise to counteract the 10% cut). So the president, as a balance of power, is the one to determine congressional pay, but to keep it from being a political issue and trade for votes, the president can only approve pay raises for congressmen outside of his own presidential term. I thought about having the Judiciary determine congressional pay, but that seemed very weird to contemplate having the Judiciary take on an unconventional role like that.

I dont like the President deciding Congresses pay. I like congress having less pay though. They need to be required to vote each time.

O'Sullivan Bere · #53 (**permalink**) 3 Weeks Ago

Quote:

Originally Posted by Marcus1124

When discussing "Original meaning", it is important to distinguish between two very different concepts. The first, and more legitimate is original understanding; what were the words generally understood to mean by society at large when they were adopted. The second, and far less reputable is original intent, which often times leads courts to flat out ignore the explicit wording of a statute in pursuit of some unwritten "intent" of the lawmakers.

The focus on "intent" of the legislature goes back to Blackstone's commentaries on the laws of England, early writings on the proper method of interpreting legal texts by courts which emphasizes the "intent" of the legislature. However, when discussing this these same writings emphatically state that the clearest indication of the intent of the legislature is the words they actually used when legislating (in other words original meaning). Blackstone:

The first bolded phrase is the essence of Justice Scalia's orthodoxy.

The bolded part at the end underscores that it is not the job of a judge to merely decide what is just, even overriding laws they personally view as unjust. Judges are not understood to be empowered with broad plenary power to meet out "justice" or "equity", but only to apply the laws as written in an equitable and just manner.

Sometimes I agree with Scalia and other times I do not, and sometimes both in part, depending on the case and/or his stated approaches. I've had problems with Scalia's approach to interpretations of the US Constitutional provisions and even his own faithfulness to his own claims at times of how one should make intepretations. As for his interpretative approaches regarding 'original understanding,' I have mixed opinions on his particular approaches on that.

And I wish to stress that in saying that I mean neither him or the other members of the SCOTUS bench any general disparagement. Members of the legal profession can have good faith and reasonable grounds for disagreement in many areas of interpretation legitimately open to differing intepretative positions. It's hard to say in writing without oral emphasis the difference of considering one's approach to be 'wrong' in a subjective matter when it's just a matter of good faith difference in interpreting things that allow for differences of opinion on interpretation, and being wrong objectively, such as flagrantly ignoring express language to the contrary of a clear law, e.g., a holding that a person born in the US and under the jurisdiction thereof is not a citizen in flagrant disregard of the Fourteenth Amendments clear and unambiguous language to the contrary because their parents are illegal immigrants because a judge thinks that should in fact be the law in his/her personal opinion. I often agree, concur or disagree in whole or in part with any of the Justices on any given case. Too often IMO, ideologues in law and in society like to slam each other citing their personal subjective opinions abou the meaning of disputable things to make it seem others are objectively wrong, which are self-serving, strawman and circular argument bogus ways of debating issues to me.

Common law courts--of which the US follows the tradition--do have the power to make law on their own, the common law. But the common law powers are subject to statutory and constitutional law that trump common law powers on the given things to which they speak.

Jargon is an interesting topic, and generally evokes faithfulness to the term and its developments in the courts and is less a source of disagreement.

For example, 'without benefit of clergy' as cited by Blackstone in your post is legal jargon for something very specific. It means the following and has a development history surrounding it:

Benefit of clergy - Wikipedia, the free encyclopedia

To take it in its dictionary terms would be to take it completely out of its context. One such example coming to mind was the spiteful but obvious legal ignorance of the South Carolina legislature in the antebellum and Civil War period using this term as a form of punishment of denying people the right to a religiously ministered and consecrated funeral. Someone apparently thought the phrase was a cool way of really punishing someone harshly out of legal ignorance of its meaning, and it took a whole different meaning in the SC legislature. Obviously the term as used in SC meant their new and different application, and therefore should have been interpreted in that state to mean just that, but it was amusing to many that it showed that they revealed a lack of knowledge of the traditional meaning of the term.

Another example that does appear in the US Constitution is 'ex post facto.' Likewise, it is legal jargon for something very specific and the SCOTUS long ago assured that its proper context was made evident and clear insofar as its meaning in Calder v. Bull:

Quote:

. . . I shall endeavour to show what law is to be considered an ex post facto law, within the words and meaning of the prohibition in the Federal Constitution. The prohibition, 'that no state shall pass any ex post facto law,' necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing. Literally, it is only, that a law shall not be passed concerning, and after the fact, or thing done, or action committed. I would ask, what fact; of what nature, or kind; and by whom done? That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protector of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose, that the States were prohibited from making any law after either of these events, and with reference thereto. . . .

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. . . .

FindLaw | Cases and Codes

The courts on the states (which also use the term) and federal level have never chosen to depart from that understanding and its meaning. It's a well accepted piece of jargon and the law favours stare decisis and well settled law. It's highly unlikely the US system will ever choose to evolutionise the meaning of the term given it's so well settled by now.

turnitup5000db · #54 (**permalink**) 3 Weeks Ago

28th Amendment to the Constitution (As envisioned by turnitup5000db) - The president and the congress of the United States shall be required to create a balanced budget for each fiscal year, and the congress shall no longer emit bills of credit to foreign nations.

To be quickly followed by...

29th Amendment to the Constitution (As envisioned by turnitup5000db) - No person shall spend more than 2 terms in the United States Senate or more than 3 terms in the United States House of Representatives.

And...

30th Amendment to the Constitution (As envisioned by turnitup5000db) - The congress shall pass no legislation more than 200 (8 1/2 x 11 inch) pages long, in Times New Roman 12 point font, single spaced. The congress shall be given a three day moratorium on voting on any proposed bill in order to read and consider said bill.

I would literally shit my pants if any of this EVER happened, though.

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