Constitutional Interpretation

Nothing much new going on here…got a few more nibbles on selling the rig but nothing really yet, weather’s starting to cool and dehumidify a little, and we’re still not going out other than to Mass, pickup groceries, and the Elks Lodge. Neil got drafted to be the Bingo caller for the Ladies of Elks at our lodge…it is the 1st and 3rd Sunday afternoons instead of every week. He’s agreed to not tell stories or jokes that only nuclear submarine people will understand and they’ve agreed he doesn’t have to be an automaton…some levity must happen…and Connie’s agreed to be his cocktail wench during the games.

He smoked a half brisket on the smoker the other day…made up some rub and then smoked at 165 degrees for 5 hours. Taste was phenomenal…nice and pink with bark ‘round the edges…but it was still kind of on the tough side. Further investigation showed that he’s gonna smoke at 220 degrees for 12 hours next time after an overnight marinade to get more tender result. One of the folk he talked to said that cutting it in half would keep it from smoking properly…which doesn’t make much sense to him since the thickness stays the same and only the size gets cut down…otherwise we would be eating smoked brisket for a week…and while Neil has no problem with that Connie does.

Ok…Ima gonna learn ya’s about reading and interpreting the Constitution.

And it’s all their human kid’s (THK henceforth in this post) fault…back earlier in the week he posted the following on twitter.

Originalism is garbage. It says that people in the 18th century know better how to govern than we do now. That’s like saying, “Oh, leeches worked in the 1700s, so they should cure cancer.” The people who wrote the Constitution didn’t believe in originalism, so why should we?

The tweet included a photo of a quote on (I presume) the Jefferson Memorial by President Jefferson that said

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Let’s look at that quote. In it…Jefferson clearly says that institutions including laws and constitutions need to change with the times…but that’s all it says. According to THK…this means that originalists, who are actually more accurately labeled as textualists are wrong in their interpretation of what the Constitution or laws say and that what used to be called “loose constructionism” that liberals use to…for want of a better word…invent new rights that the Constitution doesn’t have in it is the correct method…essentially they believe that the Constitution means whatever I want it to mean and not what it says.

So…let’s examine this a bit further. Nowhere does the strict interpretation of what the Constitution says mean that judges or justices cannot amplify it as things change but rather that they can’t go beyond what it says and invent new rights or meanings beyond a reasonable interpretation. 

Neil responded that if liberals don’t like the Constitution then they should try to change it…THK’s response was that

If enough people believed in the change…. We currently can’t get the President that the majority voted for. It also wouldn’t matter, since originalists feel free to cut down whatever they don’t agree with if they can find the slimmest hint that some dead guy agreed with them.
 

True…the President did not get the majority of the popular vote…but according to the Constitution that is completely and irrevocably irrelevant…who wins the election is determined by the Constitution and in our opinion the invention of the Electoral College to ensure that (back in 1783) NY, MA, and VA didn’t run the country to the detriment of the other 10 states was brilliant. I can think of some ways that it could be improved…but that’s another post.

Saying that the popular vote winner should win and ignoring the rules…well, that’s like saying that in the baseball World Series in 1960 which was won in 7 games by a leadoff solo home run in the bottom of the ninth inning by the Pittsburgh Pirates…that the championship should not be awarded to the Pirates who won 4 games to 3 games by the Yankees under the rules but should instead be awarded to the Yankees because they scored the most runs in the 7 games…outscoring the Pirates 55-27 in runs. 

Stupid analogy I know…but ya know…the rules are the rules and the Pirates run…just like in the 2016 Presidential Election…the rules are the rules and the President won.

Anyway…THK kept going down his path to attack the 2nd amendment…which wasn’t what the original discussion was about. He says that the only reason for right to keep and bear arms was because of the militias that states had where everybody was part of the militia and that when the 2nd amendment was ratified there was no national Army and only the militias.

Neil pointed out that the Army, Navy, and Marine Corps were established in 1775 under the Continental Congress and have been continuously in existence since then…that the Constitution was ratified in 1783 and the 2nd amendment in 1791…both well after the establishment of national armed forces and that hence the militia part was irrelevant and that the right granted was clear…here’s the text of the amendment.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

According to THK…this when strictly read by the words…means that you only have a personal and individual right to arms if you’re part of the militia. Unfortunately…and having confirmed by numerous SCOTUS decisions…he’s wrong. Granted…there have been some limitations on that right passed by Congress and approved (eventually) by SCOTUS…for instance background checks and a (mostly) ban on possession of fully automatic weapons…ya know, the kind that military people have. The completely nonsense term “military style assault rifle” that the left goes on and on about is fundamentally identical to your everyday hunting rifle. Both are semi automatic self loading firearms…which means 1 bullet per trigger pull…which is not what actual military weapons have. But scary looking rifles with folding stocks, bipods, black components, and magazines that stick out of the bottom or side have been deemed clearly and forever to be assault weapons by the WAMM and hence are to be banned…never mind that pesky 2nd amendment thing.

How he concluded that firearm ownership is only a right if you are in the militia is beyond me…I thought that he was raised better than that and actually took civics courses in high school…but either he didn’t or didn’t learn from them.

There was also a bunch of hooey this week in the SCOTUS confirmation hearings about textualism/originalism and how the Constitution (at least according to liberals) needs to be reinterpreted for “today’s modern times”. In an article in the Wall Street Journal this week…about the only non political news source remaining…Justice Scalia’s son had a commentary on how textualists evaluate the constitution. 

Textualism or originalism does not mean that you only interpret the Constitution based on the original intent of the framers. Obviously…the framers knew that things would change, technology would develop and all that…what textualism actually means is that the words mean what they meant to the public at large when they were established…not on the intentions of the framers. In other words…read the words and what they meant to the writers at the time…and that’s what the words mean. That isn’t to say that advances in technology and such cannot be covered…but there has to be justification in what the original words meant rather than just making things up.

In other words…textualism/originalism isn’t garbage…it is just realizing that the words in the Constitution or law are what they are and mean what they mean…and not what you want them to mean but don’t have sufficient popular support to make it through the amendment process.

For example…take abortion. The whole problem with the case in Roe v. Wade wasn’t whether or not abortion should be legal or not…and it still is not the issue. The actual issue is whether the federal government has any say in whether it is legal or not. As you’ll recall if you read the Constitution…it grants certain rights to the Congress, the Executive, the Judicial, and the States and in addition it specifically excludes certain things from being granted to those same groups. Powers and rights not assigned elsewhere remain in the states control as has been confirmed by numerous court decisions.

Since abortion (and likewise gay marriage) aren’t mentioned in the Constitution…a strict reading of the meaning of the words in the document means that those rights fail to the states and hence the federal government and courts do not have any jurisdiction. A liberal majority on the SCOTUS managed to invent a right under Due Process and Right to Privacy in order to legalize both of these. Textualists would leave those decisions to the states…which would mean that some states would ban them, some would allow them in all cases, and some would allow them under varying circumstances or regulations. I’m actually ok with that interpretation…there are many laws and regulations that vary state by state and there is no real difference in whether abortion or gay marriage is legal and whether the age for possession of alcohol is different between some states or whether pot is legal or illegal depending on the state…it’s simply not the federal government’s job to make that determination.

One thing I read about over and over this week during the SCOTUS hearings was how the overturning of Roe v. Wade would. “Invalidate the constitutional right of the woman to choose” but that’s a bunch of hogwash. First off…the woman didn’t get pregnant on her own…so how is it not also a violation of the privacy rights of the father for the abortion to proceed without his consent? Yes…it is the woman that is pregnant…but the man got her that way and if she carries the baby to term he is responsible for child support payments…so shouldn’t he have the right to have a ay in whether the pregnancy proceeds or not? And actually…overturning the SCOTUS case would most definitely not outlaw abortion…it would merely return the issue to the states where it belongs.

Another example…we’ve all read the cases in the news recently where various federal courts and state courts have intervened in the election rules due to the corona virus…to be fair some of these cases have been resolved in the Democrat’s favor and some in the Republican’s favor. The problem is…why do these court cases exist at all.

Federal courts first…Article 2 and the 12th amendment clearly state

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

What it says that it is the state’s responsibility to appoint the electors for President…neither the Congress or the Judiciary have any role in the matter. Given that…how in the hell do these liberal leaning it means what I want it to mean federal judges have any power to direct that state laws passed by the various states and approved by their governors should not be followed. Mail in ballot requirements, absentee ballot requirements, witness requirements, ballot receipt deadlines…all of these and many more are different in different states…which is exactly the intent of the Constitution…each state gets to set their own rules.

State courts…I really don’t see how a state court…even the state supreme court…has the right under either the federal or state constitution to direct that legally passed voting rules not be followed. State courts do have the authority to declare a particular rule or set of rules unconstitutional under the state constitution…but that’s it. They do not have the authority to just say “don’t bother following the law”.

Another example…we keep reading about how “if the Republicans follow this sham process and approve Judge Barrett’s nomination to SCOTUS…every thing remains on the table including establishment of term limits for SCOTUS justices”. 

In the first place…how is it a sham process when in the previous many times that a SCOTUS seat came open in an election year every time the President nominated a replacement…and in those cases where the President and Senate were the same party the nomination was confirmed and when they were not the same they were generally not confirmed. Seems like it isn’t a sham at all…and let’s not forget that even the late Justice Ginsburg said that the President’s term continued into his 4th year in office.

Another example…one of the Democrats on the Senate Judiciary Committee this week asked for Judge Barrett’s opinion on whether or not the President has the power to pardon himself and whether he was above the law. Her response was that nobody was above the law and that the question of whether the President can pardon himself has never been litigated and hence she can not give an opinion on the question. When you look at the Constitution on pardon power…it says

…he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Nothing in there specifically says whether a President can pardon himself or not…she rightly answered the question posed that there was no legal  determination on the issue yet. That didn’t stop the Senator and the WAMM from proclaiming that she “Refused to say that he cannot pardon himself”. Clearly political spin as what she said was that it wasn’t her decision to make and wouldn’t’ comment on a hypothetical as the case might come before her court some day.

Ya know…I can understand that the Democrats are still pissed off (a) over the Merrick Garland non vote…which personally I think should have had a vote and been not confirmed or confirmed but I can understand why precedent and politics resulted in Senator McConnell’s decision not to have a vote and (b) the fact that the President won even though he lost the irrelevant popular vote. Liberals are trying to essentially end run the Electoral College with the Interstate Popular Vote Compact…but if that gets enough states to take effect there will be several suits over it…first that states aren’t allowed to leave the coalition according to the coalition advocates and second states are prohibited under the Constitution from entering into pacts with other states.

Frankly…I have no idea whether the President can pardon himself…it has never been attempted and hence never been tested legally. Strictly by the words…there is no prohibition against it but then the nobody is above the law idea also has some validity…I personally don’t know of any evidence either way what the words “issue pardons” meant to the people in the 1780s…and in the absence of that it seems like you’re not prohibited from pardoning yourself…although I have to admit that doesn’t sound right. It might be the right moral conclusion that you cannot pardon yourself…but the right moral conclusion and what the Constitution says might be in conflict.

He’s back…at least one of our gators is…although in reality it probably never went anywhere but was just spending most of the time submerged on the bottom to keep cool and only intermittently coming up to breathe. We’ve seen it (Ragnar we think) a couple times in the water and up on the far bank. The weather is starting to cool off for the autumn so I ‘spect we’ll see them more reg’lar now.

D75 5157

Interesting things found on the net.

Judge Barrett actually had a blank notepad at her witness table during her Inquisition…but our friend Bill send this one.

AmyComeyBarrettNotes

For math nerds including DIL Jen.

You may have noticed.

YouMayHaveNoticed1

and

YouMayHaveNoticed2 copy

Who figures this stuff out I wonder?

TimeToRetire

Most definitely true down here in FL.

TurnSignals

Sucks to get old.

SwearForgettingJars

 

GotTheSpider2

World leaders and their dogs…that’s the South Korean President on the lower right.

WorldLeadersWithTheirDog

GrandmaUnfriending

And in the “you had one job” category”

YouHadOneJob00001

YouHadOneJob00002

YouHadOneJob00004

YouHadOneJob00008

YouHadOneJob00009

YouHadOneJob00010

 

Cyas.

About Gunther

The full time RV travels and experiences of Gunther the Bear and Kara the Dog…along with their human staff neil and Connie.
This entry was posted in Homebody, Reality Based Blogging. Bookmark the permalink.

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