dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 3, 2010 21:39:10 GMT -5
One of the key Tea/Republican talking points has long been to strictly adhere to the US Constitution as it was written. In fact, much of the GOP opposition to Solicitor General Elena Kagan's appointment to the Supreme Court is because of their irrational fear that she would try to "interpret" the Constitution rather than strictly enforce it. Alabama's Jeff Sessions, the top Republican on the Judiciary Committee, even charged that Kagan might "use her post to mold the law to her liberal beliefs". That's a pretty strong accusation.
However just today Mr. Sessions just stated "I'm not sure exactly what the drafters of the (14th) amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen."
"The Constitution is not as clear as it first appears," Sen. Jeff Sessions (Ala.) told reporters Tuesday. "I continue to hear good Americans explain to me they think it makes no sense."
Now I have my own opinions on the 14th Amendment to the US Constitution and I am not interesting in debating it here. However it seems that Mr. Sessions is doing quite a bit of Constitutional "interpreting" of his own - no?
dfx
PS. Would the last line of Mr. Sessons' statement be applicable to the 2nd Amendment if "good Americans" also thought it too didn't make sense? Again I have my own opinions on the 2nd Amendment, but I guess I'm confused as to where the line is drawn on interpreting the Constitution and who is responsible for drawing it? Tea/Republicans can't have it both ways...
PSS. I wish there were some Freehold news going on right now, I'm getting tired of this...
|
|
BrianSullivan
Full Member
Good ideas never cross burned bridges. Practice unity in our community
Posts: 1,041
|
Post by BrianSullivan on Aug 4, 2010 5:07:52 GMT -5
PSS. I wish there were some Freehold news going on right now, I'm getting tired of this...
There is always Freehold news going on. Just yesterday I posted more on the proposed fire district and the report of the concerts being moved back to the parking lot. Thoughts? This is a small but busy little town, plenty to do and plenty to talk about. Any good news from the BOE? Thoughts on the athletic cuts in the regional? Did you vote for Center Players and help put them on the map? And so on.
BTW, I do enjoy reading your thoughts on the bigger issues. I was a bit surprised to see you posting on these things, but it is good to see. That is what the site is for.
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 4, 2010 8:17:24 GMT -5
Brian -
I cannot speak on the Fire Department's request to form a fire district as I am not on the committee pushing this idea and I do not know all of the financial details. That said, I have decided to reserve my judgment on this matter until I know all of the financial implications associated with such a change. If the town/taxpayers will save money with the formation of a district without sacrificing the quality/level of services provided, I'm for it. If this option ends up costing taxpayers more money in the long run, I'm against it. (To be honest, I still have not seen enough information published to make up my mind one way or the other.)
As for our schools, I am still not sure what I'm legally permitted to say publicly since I am a member of the Board of Education and there are certain laws (i.e. the Sunshine Law) that forbid me from disclosing Board-related items. I also would not want anyone confusing/attributing my personal opinions as representing the entire Board of Education. The only time I can really publicly give my opinion on the schools and ensure that everyone understands my personal views is when I'm up for election. (If you really want to know my opinions on our schools, check out some of the messages I posted back in March/April. These messages articulate my feelings about the schools and I still feel the same way.)
As far as local politics, my personal opinion is that party affiliation matters little. I vote for whoever I feel can get the job done the best. (I think it was George Schnurr or Marc LeVine who said it best: "there is no 'Democrat way' or 'Republican way' to pick-up the trash, fill potholes, or remove snow from our town's streets.") Party affiliation matters a little more to me regarding state-level politics - albeit only slightly. I am a fiscally conservative, socially liberal voter.
I also abhor those who strictly vote down party lines or who blindly defend one party over another. (This is why I have been posting so much lately as I believe some of the posters on this site fall into the above categories - and I like to provide balance.)
dfx
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 4, 2010 10:34:45 GMT -5
More hypocrisy?
"Sen. Lindsey Graham (R-S.C.) on Tuesday night argued that the 14th Amendment no longer serves the purpose it was designed to address and that Congress should reexamine granting citizenship to any child born in the United States."
Sounds like a lot of convenient interpreting of the US. Constitution is occurring on the Tea/Republican side of the aisle this week...
dfx
|
|
|
Post by richardkelsey on Aug 4, 2010 14:11:28 GMT -5
One of the key Tea/Republican talking points has long been to strictly adhere to the US Constitution as it was written. In fact, much of the GOP opposition to Solicitor General Elena Kagan's appointment to the Supreme Court is because of their irrational fear that she would try to "interpret" the Constitution rather than strictly enforce it. Alabama's Jeff Sessions, the top Republican on the Judiciary Committee, even charged that Kagan might "use her post to mold the law to her liberal beliefs". That's a pretty strong accusation. However just today Mr. Sessions just stated "I'm not sure exactly what the drafters of the (14th) amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen." "The Constitution is not as clear as it first appears," Sen. Jeff Sessions (Ala.) told reporters Tuesday. "I continue to hear good Americans explain to me they think it makes no sense." Now I have my own opinions on the 14th Amendment to the US Constitution and I am not interesting in debating it here. However it seems that Mr. Sessions is doing quite a bit of Constitutional "interpreting" of his own - no? dfx PS. Would the last line of Mr. Sessons' statement be applicable to the 2nd Amendment if "good Americans" also thought it too didn't make sense? Again I have my own opinions on the 2nd Amendment, but I guess I'm confused as to where the line is drawn on interpreting the Constitution and who is responsible for drawing it? Tea/Republicans can't have it both ways... PSS. I wish there were some Freehold news going on right now, I'm getting tired of this... Okay -- first -- you do know that the Second Amendment was not written at the same time as the Fourteenth Amendment -- correct? You do also know that the first Amendment was part of the bill of rights -- conceived to apply as individual rights guaranteed in the Constitution? Do you also know why the 14th Amendment was written? Do you know the legislative history of the 14th Amendment? Do you know that the legislative History of the 14th Amendment never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here? Do you know that the US Supreme Court actually interpreted the 14th Amendment that exact way -- before it came along and changed its mind? BTW -- we lawyers don't have a problem with Court's getting it right. For example, when the world thought it was okay to buy and sell black people, some really smart Justices wrote an excellent opinion defending that -- and it was the law of the land -- until the courts came along and got it right. In 1973, the court made up the Constitutional right to an abortion -- literally made it up -- and some day people will scoff at the idiotic notion that it should be a right -- or the more idiotic notion that it is actually a Constitutional right. Some element of interpretation is necessary in many great pieces of writing -- from recently written statutes to our venerable Constitution. People who say otherwise are fools. The argument most often advanced by "originalists" -- that is legal scholars who think the Constitution should be interpreted as it was intended at the time -- is that doing so gives fidelity to the intention of the draft. Moreover -- changing the Constitution is a legislative function -- and thus should be done legislatively. (That makes good sense to me) However, in the law, there are times when original intent cannot be found by contemporaneus writing and debate -- and thus courts consider legislative intent in a vacuum. In my view, the job of a court then is to send the issue back to the legislature. (Though if a legal fight is over the correct interpretation -- what might become of litigants fighting over the issue -- a thoughtful problem that forces Courts to make that final call in very limited and discreet cases) In the issues you cite -- the original intent of the drafters is not in dispute in either case. Yet, one court barely got the 2nd Amendment case correct, and one court the last court to rule on the 14th Amendment illegal alien birth-place issue got it dead wrong. The difference in the reasoning is the difference between those who "choose" interpretation over original intent. To be clear, interpretation is certainly required in limited cases. However, choosing to ignore original intent to find a "new meaning" or "new interpretation" is a process that is legislative, not judicial. The perfect example of this is the abortion case -- a case few have ever read and fewer understand the legal issues. Texas had a statute that said you could not perform abortions. The Plaintiff wanted an abortion, and she sued claiming that the statute was trumped by her federal right to privacy and abortion. The opinion, concurrences, and dissents are hundreds of pages long. (That should be your first hint that law is being created, not reviewed) The Constitution either grants such rights, or it does not. If it is silent on such rights, then the Constitution has a fix for that. It leaves to the people, through their elected officials, in the states, the right to choose for themselves the laws that govern each other. The opinion in the Roe case could have been 2 pages. The first page and one-half would have been the case caption and the procedural posture (history of how the case got before the Supreme Court). The last half page should have read as follows: (or something like this) The sole question before this Court is the validity of the Texas Statute XXXXX. Plaintiff claims the statute is unenforceable and that she has a Constitutional Right to privacy that results in her Constitutional Right to Abortion. The briefs filed with this court include a record filled with various expert testimony on life, its importance, its sanctity, and when it begins. Still others discuss prior cases of this court, and make arguments about liberty, freedom, and equality of rights among the sexes. Each brief is well written, thoughtful, and the work of the best legal minds this country has produced. The overwhelming majority of words written, however, fail to address the sole issue before this Court. Does the US Constitution guarantee a right to abortion at any time in a pregnancy or for any or no reason. The answer is no. Indeed, the US Constitution is dead silent on abortion. The Court would be guessing if it said that abortion was not in the Constitution because no one even considered the practice at the time. It simply is not in the Constitution. The founders did consider that millions of rules and laws and mechanisms of self-governance could never be in one document. They did not create this institution to insert those one by one into the document, substituting our judgment for the judgment of the people. Instead, they created the 9th and 10th Amendment. They reads as follows, respectively: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In this case, we have a Constitutional question and answer. Does the US Constitution provide a federal right to abortion. The answer is no. Does the US Constitution's failure to provide the right of abortion prevent the people from enacting such a right. The answer, under the 9th Amendment is no. Accordingly, the question of abortion is one reserved to the people. The people of the state of Texas, through their duly elected officials, have outlawed the practice of abortion. We make no judgment on their wisdom, or lack thereof. We only rule that the issue is not one for federal Constitutional intervention. The power to limit or allow abortion by the Federal Government has not been delegated to the Federal Government. It resides with the people, and the people of Texas have spoken. I write this not to express my view on abortion -- but to show you the difference between fidelity to the Constitution and "modern interpretation" of the Constitution, which is, essentially, to legislatively insert into the document meaning and rights not found in the document or not considered at the time of drafting.
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 4, 2010 15:26:21 GMT -5
Wow - that's a long diatribe. You most certainly are a lawyer!
To begin, I want to assure you that I most certainly familiar with the US Constitution, the process of how a bill becomes law, how the President interacts with both the US House of Representative & the US Senate, and the role of the United States Supreme Court in reviewing cases. Having graduated college with both a Political Science and History (concentrating in United States) degrees and spending two semesters interning for a New Jersey State Republican Senator (who shall remain nameless), I feel I need to clarify this point as several of your message postings have condescendingly questioned my knowledge on these subjects. I am also quite familiar with "originalists" and even have a hard cover copy of Original Intent sitting on my bookshelf as I enjoy studying scenarios from all angles. Now let's begin...
You appear to be implying there's a difference between interpreting a "Bill of Rights" Amendment vs. Amendments 11-27. - Why is that and where is it written that's a permissible/acceptable point of view? - Are we to believe that the Constitution – or specifically the Amendments composing the Bill of Rights – are infallible articles constructed by infallible individuals? (There are literally dozens of examples where the framers themselves even acknowledge that the entire Constitution was a document born out of compromise.)
You also state that when the 14th Amendment was written, it was "never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here." - What makes you sure of this fact? - If true, why wasn't the Amendment worded differently/more precisely?
You also state "To be clear, interpretation is certainly required in limited cases." - Who decides which cases interpretations should be applied to?
Careful Counselor, you're coming dangerously close to making a few interpretations of your own...
dfx
|
|
BrianSullivan
Full Member
Good ideas never cross burned bridges. Practice unity in our community
Posts: 1,041
|
Post by BrianSullivan on Aug 4, 2010 16:21:27 GMT -5
Brian - I cannot speak on the Fire Department's request to form a fire district as I am not on the committee pushing this idea and I do not know all of the financial details. That said, I have decided to reserve my judgment on this matter until I know all of the financial implications associated with such a change. If the town/taxpayers will save money with the formation of a district without sacrificing the quality/level of services provided, I'm for it. If this option ends up costing taxpayers more money in the long run, I'm against it. (To be honest, I still have not seen enough information published to make up my mind one way or the other.) As for our schools, I am still not sure what I'm legally permitted to say publicly since I am a member of the Board of Education and there are certain laws (i.e. the Sunshine Law) that forbid me from disclosing Board-related items. I also would not want anyone confusing/attributing my personal opinions as representing the entire Board of Education. The only time I can really publicly give my opinion on the schools and ensure that everyone understands my personal views is when I'm up for election. (If you really want to know my opinions on our schools, check out some of the messages I posted back in March/April. These messages articulate my feelings about the schools and I still feel the same way.) I was mostly using the schools and fire district as examples of topics of discussion. The point being, there are plenty of topics to discuss locally. Feel free to open some up! Like you, I certainly have questions about the fire district. I see we had a very nice response on that today, which helps. Your conflict with the BOE and what can and cannot do is understandable. But I will take that a step further. Is it wrong for an elected leader to go to a site and simply provide info on what is already public info? We do have Councilman Newman here who posts helpful info at times. Would it be bad for Sims to come here and talk up the volunteer fair? Or for you to bring up some student achievements that occurred in the school? Or Newman to post something from the library. My point being, I believe there are things elected officials can do from an outreach and informational perspective. As far as local politics, my personal opinion is that party affiliation matters little. I vote for whoever I feel can get the job done the best. (I think it was George Schnurr or Marc LeVine who said it best: "there is no 'Democrat way' or 'Republican way' to pick-up the trash, fill potholes, or remove snow from our town's streets.") Party affiliation matters a little more to me regarding state-level politics - albeit only slightly. I am a fiscally conservative, socially liberal voter. It was George who said that. Marc used to say it too when he was on this site. Getting away from them specifically and making a general comment, I used to believe that but no longer do. Party affiliation does not matter to me either at the local level, I have voted for both, but make no mistake party politics are very much alive and well. I know that all seven of the people on that governing body are in it for Freehold, I have never, ever, questioned that, even at times that I have disagreed with things. But, "what's good for the party" is alive and well, make no mistake. Both parties are guilty. Want to put that to the test? Ask any of the party people to renounce their party and go independent. Better yet, some towns have no partisan governing bodies. How about a movement to do that here? Get people to run as individuals? I think getting rid of Dems and GOP would be great for the town! Then we vote on individuals. Maybe then we could also get rid of some of the nasty divisions that exist. I also abhor those who strictly vote down party lines or who blindly defend one party over another. (This is why I have been posting so much lately as I believe some of the posters on this site fall into the above categories - and I like to provide balance.) dfx You will be happy to know I vote third party often. What you call balance, I call another point of view that needs to be there. Both you and Jeff have been very refreshing and I doubt anybody, including those who disagree with you, would argue otherwise.
|
|
|
Post by jefffriedman on Aug 4, 2010 16:43:05 GMT -5
[quote author=richardkelsey board=republican thread=5290 post=23501 time=1280949088
Do you also know why the 14th Amendment was written?
Do you know the legislative history of the 14th Amendment?
Do you know that the legislative History of the 14th Amendment never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here? [/quote] ******************************** I do not know why the Quote did not work but the above is what I was trying to quote.
The following is the exact text of the Fourteenth Amendment.
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.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Now, I will address the last of the three questions. The premise of the question is wrong. If the 14th amendment only dealt with freed slaves the amendment would not start of with the words "All Persons". The language is clear it means all persons.
Whether that should be changed is a very different question but lets not confuse the facts.
|
|
|
Post by admin on Aug 5, 2010 5:00:32 GMT -5
Brian - I cannot speak on the Fire Department's request to form a fire district as I am not on the committee pushing this idea and I do not know all of the financial details. That said, I have decided to reserve my judgment on this matter until I know all of the financial implications associated with such a change. If the town/taxpayers will save money with the formation of a district without sacrificing the quality/level of services provided, I'm for it. If this option ends up costing taxpayers more money in the long run, I'm against it. (To be honest, I still have not seen enough information published to make up my mind one way or the other.) I was mostly using the schools and fire district as examples of topics of discussion. The point being, there are plenty of topics to discuss locally. Feel free to open some up! Like you, I certainly have questions about the fire district. I see we had a very nice response on that today, which helps. Your conflict with the BOE and what can and cannot do is understandable. But I will take that a step further. Is it wrong for an elected leader to go to a site and simply provide info on what is already public info? We do have Councilman Newman here who posts helpful info at times. Would it be bad for Sims to come here and talk up the volunteer fair? Or for you to bring up some student achievements that occurred in the school? Or Newman to post something from the library. My point being, I believe there are things elected officials can do from an outreach and informational perspective. It was George who said that. Marc used to say it too when he was on this site. Getting away from them specifically and making a general comment, I used to believe that but no longer do. Party affiliation does not matter to me either at the local level, I have voted for both, but make no mistake party politics are very much alive and well. I know that all seven of the people on that governing body are in it for Freehold, I have never, ever, questioned that, even at times that I have disagreed with things. But, "what's good for the party" is alive and well, make no mistake. Both parties are guilty. Want to put that to the test? Ask any of the party people to renounce their party and go independent. Better yet, some towns have no partisan governing bodies. How about a movement to do that here? Get people to run as individuals? I think getting rid of Dems and GOP would be great for the town! Then we vote on individuals. Maybe then we could also get rid of some of the nasty divisions that exist. I also abhor those who strictly vote down party lines or who blindly defend one party over another. (This is why I have been posting so much lately as I believe some of the posters on this site fall into the above categories - and I like to provide balance.) dfx You will be happy to know I vote third party often. What you call balance, I call another point of view that needs to be there. Both you and Jeff have been very refreshing and I doubt anybody, including those who disagree with you, would argue otherwise. Unbelieveable! Someone emailed me and pointed out that I had made the same error that Rich did earlier this week. It has been immediately corrected. It is good that we have people watching the admin! ;D
|
|
|
Post by richardkelsey on Aug 5, 2010 8:05:03 GMT -5
Wow - that's a long diatribe. You most certainly are a lawyer! To begin, I want to assure you that I most certainly familiar with the US Constitution, the process of how a bill becomes law, how the President interacts with both the US House of Representative & the US Senate, and the role of the United States Supreme Court in reviewing cases. Having graduated college with both a Political Science and History (concentrating in United States) degrees and spending two semesters interning for a New Jersey State Republican Senator (who shall remain nameless), I feel I need to clarify this point as several of your message postings have condescendingly questioned my knowledge on these subjects. I am also quite familiar with "originalists" and even have a hard cover copy of Original Intent sitting on my bookshelf as I enjoy studying scenarios from all angles. Now let's begin... You appear to be implying there's a difference between interpreting a "Bill of Rights" Amendment vs. Amendments 11-27. - Why is that and where is it written that's a permissible/acceptable point of view? - Are we to believe that the Constitution – or specifically the Amendments composing the Bill of Rights – are infallible articles constructed by infallible individuals? (There are literally dozens of examples where the framers themselves even acknowledge that the entire Constitution was a document born out of compromise.) You also state that when the 14th Amendment was written, it was "never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here." - What makes you sure of this fact? - If true, why wasn't the Amendment worded differently/more precisely? You also state "To be clear, interpretation is certainly required in limited cases." - Who decides which cases interpretations should be applied to? Careful Counselor, you're coming dangerously close to making a few interpretations of your own... dfx Wow -- a degree in history and political science. Awesome. I have one of those too -- and a law degree. Oh, I am also a law professor and a Dean at a Law school, a former CEO, and trial lawyer. Yippee for me. The original intent of the 14th Amendment is dead on clear -- dead on -- including the legislative intent and history. Thus, your re-interpretation and that of Mr. Friedman's hold no basis in fact. Now -- reading the doc 140 years later, and using above average intelligence like you both have -- your interpretations are not crazy, unfounded, or even bad. They are thoughtful, reasonable, and defend able. IF -- and only IF -- we ignore the actual legislative intent. Moreover, IF -- you believe the job of the Court is to Amend the meaning of the Constitution -- a job by definition of the people and the states, then that makes perfect sense too. My point with regard to the Bill of Rights -- which apparently went past you is this. They were intended as individual rights. (A huge point often forgot with respect to the Second Amendment.) Moreover, your original discussion addressed the founders, and I just wanted to be clear that the founders were dead when the 14th Amendment came along. With you most excellent back ground in History -- I am sure you can find the legislative history of the 14th Amendment. There is no question what the 14th Amendment was for at the time it was enacted. ZERO QUESTION. The only question is whether or not courts may use and grow that Amendment as a "living Constitution" to fit the problems and issues of today, into the provisions of yesteryear. I am in that camp of people who think we Amend the Constitution or we Draft new Constitutional rights if we want them -- rather than permit an un-elected judge to substitute his or her legislative judgment for that of the people. In 1982, in a case called Plyler v. Doe, the US Supreme Court used the 14th Amendment to grant to illegal aliens a US Constitutional right that citizens didn't have. It found in the 14th Amendment the right of illegal aliens to have a free, US taxpayer funded, K-12 education. It's a very famous case. Now -- I suspect that there is not now nor was there ever support for a Constitutional Amendment to give illegal aliens a US Constitutional right to a free K-12 education. I likewise suspect that in almost every state, you could not pass a state law giving such illegals such rights. So -- when Courts find rights that don't exist to create policies they want we should all get concerned. Even if you want illegal aliens to get a free k-12 education, you should be concerned that the next Court might find some right you don't like. I prefer that new rights -- and the rights of the people not enumerated -- be decided collectively by the people through their elected leaders as actually conceived by -- wait for it -- the US Constitution.
|
|
|
Post by jefffriedman on Aug 5, 2010 8:38:55 GMT -5
Rich,
As a law professor and dean you must be well aware that if the plan meanings of the words of the legislation or amendment are clear then then the use of legislative history, floor speeches, and other legislative intent is not proper. The reason for this as you are will aware is because legislation and amendments are born of compromise. What one Senator or Representative says in a floor speech, committees write up, etc. is not the law.
As you know with proper legislative interpretation you start with the words. The first words of the 14th amendment say “All Persons”. If the drafter and more importantly the Representatives, Senators and States voting on the amendment wanted it only to apply to freed slaves the language would have been different; it would have said, and excuse the language, but it would have said “All Negros” or “All former slaves and indentured servants.” It did not so if All Persons is an understandable phrase then no additional search into the interpretation is needed.
To be sure there is a clause that limits what “all persons” means; the clause “subject to the jurisdiction thereof” but that does not limit it to freed slaves. That is also a seperate discussion which may be more relevent to the issue.
I too can point to a number of floor speeches; Supreme Court opinions to support my position as well therefore proper legislative interpretation requires us to use the plain meaning of the language of the amendment “All Person”
|
|
|
Post by richardkelsey on Aug 5, 2010 8:55:47 GMT -5
Rich, As a law professor and dean you must be well aware that if the plan meanings of the words of the legislation or amendment are clear then then the use of legislative history, floor speeches, and other legislative intent is not proper. The reason for this as you are will aware is because legislation and amendments are born of compromise. What one Senator or Representative says in a floor speech, committees write up, etc. is not the law. As you know with proper legislative interpretation you start with the words. The first words of the 14th amendment say “All Persons”. If the drafter and more importantly the Representatives, Senators and States voting on the amendment wanted it only to apply to freed slaves the language would have been different; it would have said, and excuse the language, but it would have said “All Negros” or “All former slaves and indentured servants.” It did not so if All Persons is an understandable phrase then no additional search into the interpretation is needed. To be sure there is a clause that limits what “all persons” means; the clause “subject to the jurisdiction thereof” but that does not limit it to freed slaves. That is also a seperate discussion which may be more relevent to the issue. I too can point to a number of floor speeches; Supreme Court opinions to support my position as well therefore proper legislative interpretation requires us to use the plain meaning of the language of the amendment “All Person” Actually -- you couldn't be more wrong -- dead wrong. The use of legislative history is not only permitted, but critical to the interpretation of statutes that are not clear and whose intent are in question. It is the essence of the "originalists" As a primer on some of the issues you raise -- begin reading here. www.14thamendment.us/birthright_citizenship/original_intent.html
|
|
|
Post by jefffriedman on Aug 5, 2010 9:21:06 GMT -5
Rich, As a law professor and dean you must be well aware that if the plan meanings of the words of the legislation or amendment are clear then then the use of legislative history, floor speeches, and other legislative intent is not proper. The reason for this as you are will aware is because legislation and amendments are born of compromise. What one Senator or Representative says in a floor speech, committees write up, etc. is not the law. As you know with proper legislative interpretation you start with the words. The first words of the 14th amendment say “All Persons”. If the drafter and more importantly the Representatives, Senators and States voting on the amendment wanted it only to apply to freed slaves the language would have been different; it would have said, and excuse the language, but it would have said “All Negros” or “All former slaves and indentured servants.” It did not so if All Persons is an understandable phrase then no additional search into the interpretation is needed. To be sure there is a clause that limits what “all persons” means; the clause “subject to the jurisdiction thereof” but that does not limit it to freed slaves. That is also a separate discussion which may be more relevant to the issue. I too can point to a number of floor speeches; Supreme Court opinions to support my position as well therefore proper legislative interpretation requires us to use the plain meaning of the language of the amendment “All Person” Actually -- you couldn't be more wrong -- dead wrong. The use of legislative history is not only permitted, but critical to the interpretation of statutes that are not clear and whose intent are in question. It is the essence of the "originalists" As a primer on some of the issues you raise -- begin reading here. www.14thamendment.us/birthright_citizenship/original_intent.htmlRich, If you read what I said I agree that legislative intent is critical when the statute or amendment is not clear. My point is the words "All persons" is very clear the intent is plain, it means "ALL PERSONS". Just because you do not like what "ALL PERSONS" means does not change the definition of the words "ALL" or "PERSONS". Your debate is with the clause “subject to the jurisdiction thereof” not the clause "ALL PERSONS". The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Based on the legislative intent of that clause, a clause which is not clear and therefore requires additional legislative interpretation, it is clear that at that time that a person born here by parents planning on staying here is a citizen by the fact that they were born here because if they plan on staying they are subject to the jurisdiction thereof. Now whether one was planning on staying here was a much easier thing to determine and there were no immigration laws at the time but if were are going to have a discussion on the matter intellectual honesty is necessary. Should “All Persons” be changed? I understand the arguments for changing it but I have severe reservations to how that will affect the spirit of America through a creating of an untouchable underclass essentially of children born here with no other allegiances, no “home country” no rights. That scares me very much. Should “Subject to the jurisdiction thereof” be changed or be more precisely defined? That may be necessary but I have the same fears that possible long term affect will lead to a permanent underclass of unprotected persons.
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 5, 2010 9:27:13 GMT -5
Thus, your re-interpretation and that of Mr. Friedman's hold no basis in fact. Mr. Kelsey - You are once again trying to imply that I was doing something that I clearly am not. At no point during this thread did I attempt to interpret anything. I am simply asking questions and letting you defend your position. The original intent (you like that, huh?) of this posting was to point out the hypocrisy of today's Tea/Republican party as it pertains to it's job of selectively determining which Constitution Amendments are "interpretable" and which ones are not. Your argument rests on the notion that the Bill of Rights are immune to interpretation/review because they were designed to guarantee individual freedoms. So again I have to repeat the same question that you did not answer in my previous post: - Where is it written that's a permissible/acceptable point of view? - Are we to believe that the Constitution – or specifically the Amendments composing the Bill of Rights – are infallible articles constructed by infallible individuals? If you want to take this even farther, couldn't one argue that the 14th, 15th and 19th Amendments also guarantee individual liberties and hence should also be immune from alteration? Perhaps you're of the belief that because these Amendments were not added during the original Constitution Convention of 1787 they are somehow of "lesser" importance? dfx
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 5, 2010 9:35:09 GMT -5
Wow -- a degree in history and political science. Awesome. I have one of those too -- and a law degree. Oh, I am also a law professor and a Dean at a Law school, a former CEO, and trial lawyer. Yippee for me. Is this really necessary? As the Dean of a law school, I assume that you do not instruct your students to argue their cases like this - do you? dfx
|
|
|
Post by richardkelsey on Aug 5, 2010 10:18:45 GMT -5
Thus, your re-interpretation and that of Mr. Friedman's hold no basis in fact. Mr. Kelsey - You are once again trying to imply that I was doing something that I clearly am not. At no point during this thread did I attempt to interpret anything. I am simply asking questions and letting you defend your position. The original intent (you like that, huh?) of this posting was to point out the hypocrisy of today's Tea/Republican party as it pertains to it's job of selectively determining which Constitution Amendments are "interpretable" and which ones are not. Your argument rests on the notion that the Bill of Rights are immune to interpretation/review because they were designed to guarantee individual freedoms. So again I have to repeat the same question that you did not answer in my previous post: - Where is it written that's a permissible/acceptable point of view? - Are we to believe that the Constitution – or specifically the Amendments composing the Bill of Rights – are infallible articles constructed by infallible individuals? If you want to take this even farther, couldn't one argue that the 14th, 15th and 19th Amendments also guarantee individual liberties and hence should also be immune from alteration? Perhaps you're of the belief that because these Amendments were not added during the original Constitution Convention of 1787 they are somehow of "lesser" importance? dfx Why must I answer your questions -- but you not mine? The answers to your questions are in my answer. You missed them. The Constitution is not and cannot be in infallible document. It was created by man, amended by man, and interpreted by man. When faced with a Constitutional provision that lacks perfection -- or does not exist, the remedy is legislative action -- as I discuss above. I have never argued that any Amendment is immune from alteration. I only argue the very critical point that alteration, deletion, addition, or the change in a meaning of a Constitutional Amendment should be done by -- Amendment! That is how the process was conceived. I have further argued, and no one here has found a way to even address this -- that the Constitution itself provides for this method, and likewise addresses the method for creating rights and laws not in the Constitution. Thus, you appear to be arguing with yourself.
|
|
|
Post by richardkelsey on Aug 5, 2010 10:24:52 GMT -5
Wow -- a degree in history and political science. Awesome. I have one of those too -- and a law degree. Oh, I am also a law professor and a Dean at a Law school, a former CEO, and trial lawyer. Yippee for me. Is this really necessary? As the Dean of a law school, I assume that you do not instruct your students to argue their cases like this - do you? dfx This was sarcasm -- meant to shed light on the absurdity of you giving your resume first. That is why I gave mine -- and said -- Yippee for me. My point was -- that telling me your background does not help the arguments or positions you take. It's not completely without foundation, in that it is nice to know if I am arguing with someone who knows literally nothing, or someone with at least an aptitude. But -- the point of my point -- was other than being happy for myself, credentials mean little in the absence of argument. Now I will caveat that only to say -- that people argue point of law all the time like they know what it means because they heard a clip or a line they like. The study of law is a doctorate program. We throw really smart people out who can't hang game. It is a complex social science based on building blocks that include understanding the foundations of law, interpretation, common law, statutory law, procedure, and critical analysis. Even so -- having a law degree itself doesn't make one an expert in all things law. I know zero about tax law (except what I learned in business) Anyway -- I am sorry you missed the point of this -- had we been arguing over a beer -- my sarcasm would have been more obvious.
|
|
|
Post by richardkelsey on Aug 5, 2010 10:29:28 GMT -5
Finally -- I am going on vacation -- so I may be off the grid for quite some time. My silence, while I am sure will be welcomed, should not be confused with surrender.
However, I am willing to concede that the 14th Amendment clearly was enacted for the purpose of allowing illegal aliens to enter our country, get a public education, access to healthcare, and instant gains of citizenship for their off-spring.
I am going to read now today how the 14th Amendment was enacted for one other obvious purpose, which is to permit gay marriage. That must be in one of the Con Law CLE's I missed.
Then again, Ms. Kagan, a former Harvard Law Dean, thinks the Constitution permits the feds to tell me exactly what I must eat each day. So -- like the layman, each day I am learning more about this Constitution.
|
|
|
Post by jefffriedman on Aug 5, 2010 10:39:25 GMT -5
Actually -- you couldn't be more wrong -- dead wrong. The use of legislative history is not only permitted, but critical to the interpretation of statutes that are not clear and whose intent are in question. It is the essence of the "originalists" As a primer on some of the issues you raise -- begin reading here. www.14thamendment.us/birthright_citizenship/original_intent.htmlRich, If you read what I said I agree that legislative intent is critical when the statute or amendment is not clear. My point is the words "All persons" is very clear the intent is plain, it means "ALL PERSONS". Just because you do not like what "ALL PERSONS" means does not change the definition of the words "ALL" or "PERSONS". Your debate is with the clause “subject to the jurisdiction thereof” not the clause "ALL PERSONS". The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Based on the legislative intent of that clause, a clause which is not clear and therefore requires additional legislative interpretation, it is clear that at that time that a person born here by parents planning on staying here is a citizen by the fact that they were born here because if they plan on staying they are subject to the jurisdiction thereof. Now whether one was planning on staying here was a much easier thing to determine and there were no immigration laws at the time but if were are going to have a discussion on the matter intellectual honesty is necessary. Should “All Persons” be changed? I understand the arguments for changing it but I have severe reservations to how that will affect the spirit of America through a creating of an untouchable underclass essentially of children born here with no other allegiances, no “home country” no rights. That scares me very much. Should “Subject to the jurisdiction thereof” be changed or be more precisely defined? That may be necessary but I have the same fears that possible long term affect will lead to a permanent underclass of unprotected persons. As is often the case here there is no real retort to the argument I put forth just a claim that I am incorrect.
|
|
dfx
Junior Member
Posts: 221
|
Post by dfx on Aug 5, 2010 10:53:08 GMT -5
Why must I answer your questions -- but you not mine? Mr. Kelsey - What was your question to me? The only questions I saw were ones sarcastically asking me if I knew when the 14 Amendment was written, the history behind the 14th Amendment, or that the 2nd Amendment was part of the Bill of Rights. Were those serious inquires? (Hence the posting of my background was meant to assure you that I do indeed have somewhat of a knowledge in these areas.) I feel that I must again remind the readers of this message chain that my original posting had nothing to do with the content of the 2nd Amendment, 14th Amendment, or any Constitutional Amendment. The purpose of this message board chain was to point out the hypocrisy of Tea/Republicans and their desire to selectively interpret some Amendments while continue to defend others as "sacred". dfx
|
|
|
Post by richardkelsey on Aug 16, 2010 12:56:39 GMT -5
Rich, If you read what I said I agree that legislative intent is critical when the statute or amendment is not clear. My point is the words "All persons" is very clear the intent is plain, it means "ALL PERSONS". Just because you do not like what "ALL PERSONS" means does not change the definition of the words "ALL" or "PERSONS". Your debate is with the clause “subject to the jurisdiction thereof” not the clause "ALL PERSONS". The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Based on the legislative intent of that clause, a clause which is not clear and therefore requires additional legislative interpretation, it is clear that at that time that a person born here by parents planning on staying here is a citizen by the fact that they were born here because if they plan on staying they are subject to the jurisdiction thereof. Now whether one was planning on staying here was a much easier thing to determine and there were no immigration laws at the time but if were are going to have a discussion on the matter intellectual honesty is necessary. Should “All Persons” be changed? I understand the arguments for changing it but I have severe reservations to how that will affect the spirit of America through a creating of an untouchable underclass essentially of children born here with no other allegiances, no “home country” no rights. That scares me very much. Should “Subject to the jurisdiction thereof” be changed or be more precisely defined? That may be necessary but I have the same fears that possible long term affect will lead to a permanent underclass of unprotected persons. As is often the case here there is no real retort to the argument I put forth just a claim that I am incorrect. In this case -- there actually is no argument. You are incorrect. :-) In virtually every state, and most certainly in the Supreme Court, the use of legislative history is routine -- and essential -- to legislative interpretation and legislative intent, particulary of statutes or state and federal constitutions and treaties.
|
|
|
Post by richardkelsey on Aug 16, 2010 13:09:03 GMT -5
Why must I answer your questions -- but you not mine? Mr. Kelsey - What was your question to me? The only questions I saw were ones sarcastically asking me if I knew when the 14 Amendment was written, the history behind the 14th Amendment, or that the 2nd Amendment was part of the Bill of Rights. Were those serious inquires? (Hence the posting of my background was meant to assure you that I do indeed have somewhat of a knowledge in these areas.) I feel that I must again remind the readers of this message chain that my original posting had nothing to do with the content of the 2nd Amendment, 14th Amendment, or any Constitutional Amendment. The purpose of this message board chain was to point out the hypocrisy of Tea/Republicans and their desire to selectively interpret some Amendments while continue to defend others as "sacred". dfx This is, of course, incomprehensible. You right -- in bold -- that the purpose of this chain was to point out that "tea/Republicans" (a name you made up) selectively interpret some Amendments. But you also say, your post has nothing to do with Constitutional Amendments. It is hard to debate with someone who is confused about what it is he or she is debating. I don't think there is any doubt that your post was designed to do the following: 1. identify all republicans as Tea/republicans -- with the connotation in your mind that "Tea" makes them weird, crazy, or crackpots -- by definition. 2. Note that these type of republicans are hypocrites. (Politicians as hypocrites in either party is pretty easy to agree with) Alas -- in your effort to save your own thread and return it from substantive debate to political accusation -- you forgot your own original post where you admitted that you were "confused" about interpretation. Most of this thread was aimed at trying to help unconfuse you -- as I am sure the purpose of the thread was honest debate on the issue of interpretation, and not mere political smear on the issue of political hypocrisy.
|
|
|
Post by jefffriedman on Aug 16, 2010 17:21:55 GMT -5
As is often the case here there is no real retort to the argument I put forth just a claim that I am incorrect. In this case -- there actually is no argument. You are incorrect. :-) In virtually every state, and most certainly in the Supreme Court, the use of legislative history is routine -- and essential -- to legislative interpretation and legislative intent, particulary of statutes or state and federal constitutions and treaties. Need I say more; no real retort to to what I actually say just assurances that I am wrong. Please re-read what I said. I will say it again. Legislative intent is critical when the meaning of the word are unclear, (just as you have said). I say the words "all persons" are clear and therefore there is no need to examine floor speech's to determine what the words "all persons" means. The words "subject to the jurisdiction thereof" however are not clear on the face and require additional legislative interpretation. With that being the case you look the customs and laws of the day, floor speeches, committee write up, and how the writers of the language in question would have viewed the words by examining there actions. Here it is clear that the 14th amendment applied to more than just freed slaves. The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens.
|
|
|
Post by lisas84 on Aug 16, 2010 17:40:00 GMT -5
Mr. Kelsey - What was your question to me? The only questions I saw were ones sarcastically asking me if I knew when the 14 Amendment was written, the history behind the 14th Amendment, or that the 2nd Amendment was part of the Bill of Rights. Were those serious inquires? (Hence the posting of my background was meant to assure you that I do indeed have somewhat of a knowledge in these areas.) I feel that I must again remind the readers of this message chain that my original posting had nothing to do with the content of the 2nd Amendment, 14th Amendment, or any Constitutional Amendment. The purpose of this message board chain was to point out the hypocrisy of Tea/Republicans and their desire to selectively interpret some Amendments while continue to defend others as "sacred". dfx This is, of course, incomprehensible. You right -- in bold -- that the purpose of this chain was to point out that "tea/Republicans" (a name you made up) selectively interpret some Amendments. But you also say, your post has nothing to do with Constitutional Amendments. It is hard to debate with someone who is confused about what it is he or she is debating. I don't think there is any doubt that your post was designed to do the following: 1. identify all republicans as Tea/republicans -- with the connotation in your mind that "Tea" makes them weird, crazy, or crackpots -- by definition. 2. Note that these type of republicans are hypocrites. (Politicians as hypocrites in either party is pretty easy to agree with) Alas -- in your effort to save your own thread and return it from substantive debate to political accusation -- you forgot your own original post where you admitted that you were "confused" about interpretation. Most of this thread was aimed at trying to help unconfuse you -- as I am sure the purpose of the thread was honest debate on the issue of interpretation, and not mere political smear on the issue of political hypocrisy. I definitely must interject. Not all Republicans identify themselves as Tea Partiers. But I think the majority of Tea Partiers are racist/bigoted hate-brewing, anger-spewing nutjobs. They actually make me feel sorry for the Republican party that they are an offshoot of this longstanding and august party.
|
|
|
Post by richardkelsey on Aug 17, 2010 12:01:40 GMT -5
In this case -- there actually is no argument. You are incorrect. :-) In virtually every state, and most certainly in the Supreme Court, the use of legislative history is routine -- and essential -- to legislative interpretation and legislative intent, particularly of statutes or state and federal constitutions and treaties. Need I say more; no real retort to to what I actually say just assurances that I am wrong. Please re-read what I said. I will say it again. Legislative intent is critical when the meaning of the word are unclear, (just as you have said). I say the words "all persons" are clear and therefore there is no need to examine floor speech's to determine what the words "all persons" means. The words "subject to the jurisdiction thereof" however are not clear on the face and require additional legislative interpretation. With that being the case you look the customs and laws of the day, floor speeches, committee write up, and how the writers of the language in question would have viewed the words by examining there actions. Here it is clear that the 14th amendment applied to more than just freed slaves. The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Actually -- you stated -- without argument or proof -- that legislative history is not permitted. So -- you started it. Back up your assertion, and then I will reciprocate in kind. You can keep denying that you are wrong, but since I have actually practiced in courts around the country, and worked on these issue -- I know that you are wrong. However, why present evidence when none has been presented in support of the original patently incorrect assertion.
|
|
|
Post by richardkelsey on Aug 17, 2010 12:02:37 GMT -5
This is, of course, incomprehensible. You right -- in bold -- that the purpose of this chain was to point out that "tea/Republicans" (a name you made up) selectively interpret some Amendments. But you also say, your post has nothing to do with Constitutional Amendments. It is hard to debate with someone who is confused about what it is he or she is debating. I don't think there is any doubt that your post was designed to do the following: 1. identify all republicans as Tea/republicans -- with the connotation in your mind that "Tea" makes them weird, crazy, or crackpots -- by definition. 2. Note that these type of republicans are hypocrites. (Politicians as hypocrites in either party is pretty easy to agree with) Alas -- in your effort to save your own thread and return it from substantive debate to political accusation -- you forgot your own original post where you admitted that you were "confused" about interpretation. Most of this thread was aimed at trying to help unconfuse you -- as I am sure the purpose of the thread was honest debate on the issue of interpretation, and not mere political smear on the issue of political hypocrisy. . But I think the majority of Tea Partiers are racist/bigoted hate-brewing, anger-spewing nutjobs. This is the most shocking thing you have ever written. What is the factual basis that drove you to this conclusion?
|
|
|
Post by jefffriedman on Aug 17, 2010 14:51:48 GMT -5
Need I say more; no real retort to to what I actually say just assurances that I am wrong. Please re-read what I said. I will say it again. Legislative intent is critical when the meaning of the word are unclear, (just as you have said). I say the words "all persons" are clear and therefore there is no need to examine floor speech's to determine what the words "all persons" means. The words "subject to the jurisdiction thereof" however are not clear on the face and require additional legislative interpretation. With that being the case you look the customs and laws of the day, floor speeches, committee write up, and how the writers of the language in question would have viewed the words by examining there actions. Here it is clear that the 14th amendment applied to more than just freed slaves. The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Actually -- you stated -- without argument or proof -- that legislative history is not permitted. So -- you started it. Back up your assertion, and then I will reciprocate in kind. You can keep denying that you are wrong, but since I have actually practiced in courts around the country, and worked on these issue -- I know that you are wrong. However, why present evidence when none has been presented in support of the original patently incorrect assertion. First, you stated without argument or proof that the 14th amendmant "never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here?" That is WRONG. and it has no proof or fact attached to it just a statement acting as fact and patently incorrect assertion.. Second, you changed the argument from your patently incorrect assertion that the 14th amendment only concidered birth right citizenship for freed slave to an argument about legislative intent by first misrepresenting the process of legislative interpertation and then by misrepresenting what I said. I see no place above that I said "that legislative history is not permitted." (You implied that position from using half of a sentence.) I did say "if the plan meanings of the words of the legislation or amendment are clear then then the use of legislative history, floor speeches, and other legislative intent is not proper. The reason for this as you are will aware is because legislation and amendments are born of compromise." So as is often the case you are telling me what my position and telling me I am wrong. That is a fact. To quote from "Finding the Law" 12 edition Thomas West. By Berring and Edigner Page 166 "When you have found a statute, your process often is not complete. Statutory language can be vague or ambiguous... How you interpret a word or a phrase can determine the outcome on many issues." NOTE THE LANGUAGE "OFTEN IS NOT COMPLETE" "Statutes may be difficult to interpret for several reasons. The imprecision of the English language...change of circumstances...poor drafting... Finally, confusion can be introduced by a conscious decision on the part of the legislative body ... by using language ambiguous enough to be acceptable to each contending party." " Justice Scalia of the Supreme Court is quite hostile to the use" And he say it should not be used so your assertation that as You said In virtually every state, and most certainly in the Supreme Court, the use of legislative history is routine -- and essential -- to legislative interpretation and legislative intent, particulary of statutes or state and federal constitutions and treaties. You also said that Some element of interpretation is necessary in many great pieces of writing -- from recently written statutes to our venerable Constitution. People who say otherwise are fools.Not according to your boy Scalia...therfore another false assertation without fact. (Now I disagree with Justice Scalia, I think legislative intent and interpertation is important WHEN the plain language is not clear. NEXT, I shall go on with my proof that your claims are incorrect. From The New England Law College www.nesl.edu/research/rsguides/web1.htmWhat is legislative history? Legislative history consists of all the legislative events which occurred in the process of enacting (or defeating) proposed legislation, including all available documentation created during this process. These include the bill, its redrafts, testimony at hearings, reports or studies commissioned by the legislature, the chronology of voting, floor debate, the executive's message upon signing the bill or vetoing it. Sometimes the phrase "legislative history" is used as a synonym for "bill tracking", that is tracing the steps that have been taken in pending legislation. What is the relationship between a "legislative history" and legislation? Legislative history is not primary, mandatory authority. Only enacted legislation itself is controlling law.Why, then, would a litigant or judge refer to legislative history in a brief or an opinion? Legislative history is one tool a court may use to interpret ambiguous statutory language or to determine the intent of the legislature in writing the law and wording it in the way it did. This interpretive function is called "statutory construction." The most basic canon of statutory construction is that a court should begin interpreting a statute by looking at its "plain language." Now apon reading that you must conced that one must first look the the plain meaning of the words. "All persons" is plain as can be. Our analizis of that is complete. Shall we move on: The words "subject to the jurisdiction thereof", however are not clear on the face and require additional legislative interpretation. With that being the case you look the customs and laws of the day, floor speeches, committee write up, and how the writers of the language in question would have viewed the words by examining there actions. Here it is clear that the 14th amendment applied to more than just freed slaves. The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Finally a friendly jab, I do not understand the constant use of you resume in debate. It is an odd technique. I understood the sarcastic back and for with Dan earlier in this thread but I have seen it before and this additional resume drop seems superfluous. Do you think it will make me just stop and think, shucks, my years of education means nothing, I must be wrong because ______(fill in the name) said so? Especially when I can pull a book of my shelf and find my answer. Do you think I post before I check my facts? I know the 'I am a lawyer and you are not so I obviously know more than you' routine very very well, if you only knew my father. lol That did not work with me when I was a youth, it surely will not work now. Also what proof did you put forth that requires me to put forth proof. You made the initial statement that I was responding to, you said that the 14th amendment only applied to freed slaves) without any proof or support just your assertion of fact. You also made statements in post 4 about a number of issues without fact that you want us to accept as fact but without support. Touché
|
|
|
Post by lisas84 on Aug 18, 2010 7:41:48 GMT -5
. But I think the majority of Tea Partiers are racist/bigoted hate-brewing, anger-spewing nutjobs. This is the most shocking thing you have ever written. What is the factual basis that drove you to this conclusion? Richard, really, I am surprised at you. I don't know how to post photos, but the link below should give an idea of what many "Tea Partiers" really think, and that I believe justifies my observational statement. www.huffingtonpost.com/2009/04/16/10-most-offensive-tea-par_n_187554.html
|
|
|
Post by richardkelsey on Aug 18, 2010 13:59:04 GMT -5
Actually -- you stated -- without argument or proof -- that legislative history is not permitted. So -- you started it. Back up your assertion, and then I will reciprocate in kind. You can keep denying that you are wrong, but since I have actually practiced in courts around the country, and worked on these issue -- I know that you are wrong. However, why present evidence when none has been presented in support of the original patently incorrect assertion. First, you stated without argument or proof that the 14th amendmant "never considered a birth right of citizenship for anyone other than freed slaves and the children of slaves brought here?" That is WRONG. and it has no proof or fact attached to it just a statement acting as fact and patently incorrect assertion.. Second, you changed the argument from your patently incorrect assertion that the 14th amendment only concidered birth right citizenship for freed slave to an argument about legislative intent by first misrepresenting the process of legislative interpertation and then by misrepresenting what I said. I see no place above that I said "that legislative history is not permitted." (You implied that position from using half of a sentence.) I did say "if the plan meanings of the words of the legislation or amendment are clear then then the use of legislative history, floor speeches, and other legislative intent is not proper. The reason for this as you are will aware is because legislation and amendments are born of compromise." So as is often the case you are telling me what my position and telling me I am wrong. That is a fact. To quote from "Finding the Law" 12 edition Thomas West. By Berring and Edigner Page 166 "When you have found a statute, your process often is not complete. Statutory language can be vague or ambiguous... How you interpret a word or a phrase can determine the outcome on many issues." NOTE THE LANGUAGE "OFTEN IS NOT COMPLETE" "Statutes may be difficult to interpret for several reasons. The imprecision of the English language...change of circumstances...poor drafting... Finally, confusion can be introduced by a conscious decision on the part of the legislative body ... by using language ambiguous enough to be acceptable to each contending party." " Justice Scalia of the Supreme Court is quite hostile to the use" And he say it should not be used so your assertation that as You said In virtually every state, and most certainly in the Supreme Court, the use of legislative history is routine -- and essential -- to legislative interpretation and legislative intent, particulary of statutes or state and federal constitutions and treaties. You also said that Some element of interpretation is necessary in many great pieces of writing -- from recently written statutes to our venerable Constitution. People who say otherwise are fools.Not according to your boy Scalia...therfore another false assertation without fact. (Now I disagree with Justice Scalia, I think legislative intent and interpertation is important WHEN the plain language is not clear. NEXT, I shall go on with my proof that your claims are incorrect. From The New England Law College www.nesl.edu/research/rsguides/web1.htmWhat is legislative history? Legislative history consists of all the legislative events which occurred in the process of enacting (or defeating) proposed legislation, including all available documentation created during this process. These include the bill, its redrafts, testimony at hearings, reports or studies commissioned by the legislature, the chronology of voting, floor debate, the executive's message upon signing the bill or vetoing it. Sometimes the phrase "legislative history" is used as a synonym for "bill tracking", that is tracing the steps that have been taken in pending legislation. What is the relationship between a "legislative history" and legislation? Legislative history is not primary, mandatory authority. Only enacted legislation itself is controlling law.Why, then, would a litigant or judge refer to legislative history in a brief or an opinion? Legislative history is one tool a court may use to interpret ambiguous statutory language or to determine the intent of the legislature in writing the law and wording it in the way it did. This interpretive function is called "statutory construction." The most basic canon of statutory construction is that a court should begin interpreting a statute by looking at its "plain language." Now apon reading that you must conced that one must first look the the plain meaning of the words. "All persons" is plain as can be. Our analizis of that is complete. Shall we move on: The words "subject to the jurisdiction thereof", however are not clear on the face and require additional legislative interpretation. With that being the case you look the customs and laws of the day, floor speeches, committee write up, and how the writers of the language in question would have viewed the words by examining there actions. Here it is clear that the 14th amendment applied to more than just freed slaves. The clause “subject to the jurisdiction thereof” does limit the “all persons” clause but that did not limit it to freed slaves. (The argument you keep insisting on making even though the plain meaning of the clause is clear) At the time the drafters of the amendment believed that you were a citizen of the United States if you had no other allegiance to another power. Therefore visitors who had not intention of staying, diplomats, Native American Indians, and those who renounce their allegiance to the United States were not “subject to the jurisdiction thereof” and not citizens. Those were the only exclusions at the time of the drafting. All others born here were therefore citizens. Finally a friendly jab, I do not understand the constant use of you resume in debate. It is an odd technique. I understood the sarcastic back and for with Dan earlier in this thread but I have seen it before and this additional resume drop seems superfluous. Do you think it will make me just stop and think, shucks, my years of education means nothing, I must be wrong because ______(fill in the name) said so? Especially when I can pull a book of my shelf and find my answer. Do you think I post before I check my facts? I know the 'I am a lawyer and you are not so I obviously know more than you' routine very very well, if you only knew my father. lol That did not work with me when I was a youth, it surely will not work now. Also what proof did you put forth that requires me to put forth proof. You made the initial statement that I was responding to, you said that the 14th amendment only applied to freed slaves) without any proof or support just your assertion of fact. You also made statements in post 4 about a number of issues without fact that you want us to accept as fact but without support. Touché Legislative history is one tool a court may use to interpret ambiguous statutory language or to determine the intent of the legislature in writing the law and wording it in the way it did. This interpretive function is called "statutory construction." That is from your piece. That is all I have argued -- and I appreciate you substantiating my opinion. I have also said that not every state allows it. I know this, because Viginia does not. I also recognize that not every Justice uses legislative history -- Scalia being one who claims he does not -- but often makes his "originalist" opinions based on the "plain meaning" of a statute as understood at that time -- as reflected by the intent of the drafters. So, my friend Antonin exaggerates a bit. He likes to do that. He once told me in an abortion discussion that, "the declaration of independence is a nice puff piece, but it is not the law." Indeed it is not. Anyway -- I have never tried to argue that legislative history must be used, or that it is the only method used. Indeed, you properly quote me as saying it is not used by some states. It is you who first said that it is never used. I am glad you have corrected that view -- and now find yourself in agreement with my position. :-) I do -- BTW -- completely agree that statutory construction first looks at the plain meaning of words, and more importantly, at the definitions and other uses of terms -- as well as any conflicts with out interpretations of similar statutes.
|
|
|
Post by richardkelsey on Aug 18, 2010 14:15:46 GMT -5
This is the most shocking thing you have ever written. What is the factual basis that drove you to this conclusion? Richard, really, I am surprised at you. I don't know how to post photos, but the link below should give an idea of what many "Tea Partiers" really think, and that I believe justifies my observational statement. www.huffingtonpost.com/2009/04/16/10-most-offensive-tea-par_n_187554.htmlWell --- assuming these are actually tea partiers (Consider the Huffington Post and its 2000 citizen journalists as suspect sources), these signs certainly don't qualify as proof of what "many tea partiers think." It shows a handful of signs at rallies all across the country. Equating signs like this to the many would be like saying the New Black Panther Party represents what most or "many" democrats think. Frankly, the signs were provocative -- and meant to stir strong emotion -- but I don't think the top ten worst ones in the first slide show were "racist." Those sign holders are definitely angry -- and they mean to foster and spread that political anger. But look, a few signs calling obama a Nazi or suggesting he wants to enslave white America (which I took as a tax statement), are political hyperbole by a handful of extremists. Heck, one sign is even after George Bush! Democrat rallies anti-war protests, code pink rallies, peta crazies, anti-WTO ralliers, and the like have done and said far worse -- but that doesn't mean that all dems are hate-mongering, fear-brewing, racist nutjobs. It means issues make people angry -- including the unwashed masses who choose to associate with every party or movement. If you want me to agree that the tea party has nuts, racists, and crazy people -- I will. I will agree that the Libertarians, the Republicans, and the Democrats have them too. I would not agree, however, that "many" of those party members of racist, hate-brewing, angry, nutjobs. I think that is the difference I have with you on that issue.
|
|