View Poll Results: Is waterboarding torture?

Voters
32. You may not vote on this poll
  • Yes. It is torture and the US should never do it. (John McCain)

    13 40.63%
  • Yes. It is torture and the US should do it. (Rudy Giuliani)

    9 28.13%
  • No. It is not torture. It is an "enhanced interrogation technique". (Tom Tancredo)

    9 28.13%
  • I don't know. (also Rudy Giuliani)

    1 3.13%
  • Refuse to answer. (Mitt Romney)

    0 0%
Page 3 of 5 FirstFirst 12345 LastLast
Results 51 to 75 of 106

Thread: Is waterboarding torture?

  1. #51
    Bad address email on file fvc2020's Avatar
    Join Date
    Feb 2004
    Location
    Forest Lake, Minnesota
    Occupation
    Dispensing Optician
    Posts
    489
    I was wondering how we should get information out of terrorists/enemy combatants? Shall we continue to automaticly give them everything they want and see what happens?

    There seems to be no good answer anyone can come up with. War does change things and if you on the opposite side of the fence think we are not in a war then it's time to take your head out of the ground and face reality.


    Christina

  2. #52
    Master OptiBoarder Grubendol's Avatar
    Join Date
    Aug 2006
    Location
    Whittier, CA
    Occupation
    Dispensing Optician
    Posts
    1,506
    Quote Originally Posted by chip anderson View Post
    If war is procecuted properly, our enemies would have no decendents, therefore no problem with them rising up later.

    Chip

    Well, I think you just put the nail on the head of the problem with the responses varying so much between us.

    I see the purpose of war as being the last resort after diplomacy breaks down and the end goal of the war is to create peace by surrender and the signing of treaties.

    You see the purpose of war as wiping the enemy from the face of the earth.
    www.opticaljedi.com
    www.facebook.com/opticaljedi
    www.twitter.com/opticaljedi
    __________________________________
    Prognatus ex Alchemy ad Diligo
    Eliza Joy Martius VIII MMVIII


  3. #53
    Master OptiBoarder Grubendol's Avatar
    Join Date
    Aug 2006
    Location
    Whittier, CA
    Occupation
    Dispensing Optician
    Posts
    1,506
    Quote Originally Posted by fvc2020 View Post
    I was wondering how we should get information out of terrorists/enemy combatants? Shall we continue to automaticly give them everything they want and see what happens?

    There seems to be no good answer anyone can come up with. War does change things and if you on the opposite side of the fence think we are not in a war then it's time to take your head out of the ground and face reality.


    Christina

    bin Laden's original demands to the US before beginning this "war" were as follows:

    US forces out of Saudi Arabia (as it is holy ground)
    Oil up to $75-90/barrel (he thought the previous prices were equivalent to stealing and raping his homeland)

    The US forces left Saudi Arabia over 3 years ago, and oil is now almost $100 a barrel.

    There also haven't been any more "major" attacks and the fighting forces in Iraq aren't even associated with bin Laden (that's why when you hear them referred to by the press they are called "al-queda in Iraq")

    Seems as though we gave them what they wanted and things have gotten significantly quieter in terms Out-of-the-war-zone terrorism
    www.opticaljedi.com
    www.facebook.com/opticaljedi
    www.twitter.com/opticaljedi
    __________________________________
    Prognatus ex Alchemy ad Diligo
    Eliza Joy Martius VIII MMVIII


  4. #54
    One of the worst people here
    Join Date
    Jan 2004
    Location
    Canada
    Occupation
    Other Eyecare-Related Field
    Posts
    8,331
    I strongly believe that the terrorists want sovereignty. I believe it, because they have flat out stated it (though we ignore that). I also believe it, because terrorism has arisen from occupation. I do not believe that it just came out of no where, because they hate Americans and everyone else.

    Interesting enough, many wars have been fought over sovereignty. India, Pakistan, and Israel are some of the more recent ones. One historic one is the American Revolution where brave soldiers fought so this stuff would never happen.

    So the idea that if we do not perform disgusting torture, they will just take over, doesn't have a lot of backing.

  5. #55
    Master OptiBoarder Grubendol's Avatar
    Join Date
    Aug 2006
    Location
    Whittier, CA
    Occupation
    Dispensing Optician
    Posts
    1,506
    And you just hit it on the head. Terrorists do not have one unified goal. The terrorists in Iraq are in fact guerrilla warriors fighting for independence. The terrorists in Afghanistan who attacked us were fighting for the independence of their nation (Saudi Arabia) from our occupation. The terrorists in Ireland were fighting for their independence. The terrorists in Spain were fighting for their independence. The terrorists are all fighting for their own cause in their own region. To apply one blanket war to all of these different groups is unwinnable.
    www.opticaljedi.com
    www.facebook.com/opticaljedi
    www.twitter.com/opticaljedi
    __________________________________
    Prognatus ex Alchemy ad Diligo
    Eliza Joy Martius VIII MMVIII


  6. #56
    Banned
    Join Date
    Jun 2000
    Location
    Only City in the World built over a Volcano
    Occupation
    Dispensing Optician
    Posts
    12,996
    I don't really care what terrorist fight for as long as it isn't us they are fighting. Getting them to stop fighting us is easy just make them more terrifed of us than they are of anything else, including loosing 47 virgins.
    They will not fight even for thier "God" if they feel they will be deprived of seeing thier "God" because of the manner of thier death. See: The Pershing Cure.
    Chip

  7. #57
    One of the worst people here
    Join Date
    Jan 2004
    Location
    Canada
    Occupation
    Other Eyecare-Related Field
    Posts
    8,331
    Quote Originally Posted by chip anderson View Post
    I don't really care what terrorist fight for as long as it isn't us they are fighting. Getting them to stop fighting us is easy just make them more terrifed of us than they are of anything else, including loosing 47 virgins.
    They will not fight even for thier "God" if they feel they will be deprived of seeing thier "God" because of the manner of thier death. See: The Pershing Cure.
    Chip
    Yeah, that worked well with the North Vietnamese

  8. #58
    Master OptiBoarder Grubendol's Avatar
    Join Date
    Aug 2006
    Location
    Whittier, CA
    Occupation
    Dispensing Optician
    Posts
    1,506
    You can never defeat an enemy if you don't know what they are fighting for. That's why rebel/guerrilla forces never go away no matter how ruthless the dictators come down on them. It just makes them fight harder and it makes it easier for them to recruit new soldiers.
    www.opticaljedi.com
    www.facebook.com/opticaljedi
    www.twitter.com/opticaljedi
    __________________________________
    Prognatus ex Alchemy ad Diligo
    Eliza Joy Martius VIII MMVIII


  9. #59
    Banned
    Join Date
    Jun 2000
    Location
    Only City in the World built over a Volcano
    Occupation
    Dispensing Optician
    Posts
    12,996
    We didn't use the Pershing Cure in Vietnam. We used the LBK/Kennedy cure. Pershing, Eisenhower, McArthur or anyone with a brain would have destroyed the dams, the power stations, the politcal capitol, the supply lines, and the cities if needed.
    Can't tell you how many veterans I see as patient that tell me of places they were not even allowed to shoot back when attacked because they were ordered not to.

    Chip

  10. #60
    One of the worst people here
    Join Date
    Jan 2004
    Location
    Canada
    Occupation
    Other Eyecare-Related Field
    Posts
    8,331
    Quote Originally Posted by chip anderson View Post
    We didn't use the Pershing Cure in Vietnam. We used the LBK/Kennedy cure. Pershing, Eisenhower, McArthur or anyone with a brain would have destroyed the dams, the power stations, the politcal capitol, the supply lines, and the cities if needed.
    Can't tell you how many veterans I see as patient that tell me of places they were not even allowed to shoot back when attacked because they were ordered not to.

    Chip
    Yep, they should have done that. How dare any Country decide its own political system. We should extend this further. Nations who do not vote in who we want, we just nuke them.

    Then they will know better.

  11. #61
    Master OptiBoarder rinselberg's Avatar
    Join Date
    Jan 2004
    Location
    Sunnyvale, CA 94086
    Occupation
    Other Eyecare-Related Field
    Posts
    2,301
    Viewing the OptiBoard poll numbers to date ...


    I think this is a very positive showing FOR waterboarding, which enters this poll having to carry all of the "baggage" that goes with being a traditional method of torture, or at the very least, a decidedly tortuous approach to "enhanced interrogation".

    The way I see it, the second and third options (from the top) really should count as only one, making it just 13 AGAINST and as many as 12 IN FAVOR of waterboarding.

    That's what I call "beating the spread".

    This is as a significant victory, not for waterboarding per se, but for those who understand and appreciate the good sense and unimpeachable acumen of high ranking administration officials, from the President on down, who have been persistent in avoiding that first dangerous step onto the "slippery slope" (see rinsel;41) by steadfastly refusing to categorize waterboarding as "torture", and by refusing to foreclose, for public and international record, the possibility of professionally supervised and expertly administered waterboarding as a lawful and legitimate method of interrogating detainees in the Global War On Terror.

    "Bring it on ..."

    Last edited by rinselberg; 11-30-2007 at 09:33 PM.

  12. #62
    Cape Codger OptiBoard Gold Supporter hcjilson's Avatar
    Join Date
    May 2000
    Location
    Cape Cod, Hyannis, MA. USA
    Occupation
    Dispensing Optician
    Posts
    7,437
    What kind of punishment would you call the "dirty" nuclear bomb detonated in Boston, or London,or LA etc.? With all due respect to Senator McCain and what he's gone through, if waterboarding could stop it and he wouldn't use a hose, he should not be considered for dog catcher much less president of the United States. The same for any other candidate that puts idealism above the lives of his constituancy
    "Always laugh when you can. It is a cheap medicine"
    Lord Byron

    Take a photo tour of Cape Cod and the Islands!
    www.capecodphotoalbum.com

  13. #63
    One of the worst people here
    Join Date
    Jan 2004
    Location
    Canada
    Occupation
    Other Eyecare-Related Field
    Posts
    8,331
    Power corrupts, absolute power corrupts absolutely.

    A nation who is given power to use its forces for its foreign enemies, will then begin to use it on its domestic ones.

  14. #64
    Master OptiBoarder rinselberg's Avatar
    Join Date
    Jan 2004
    Location
    Sunnyvale, CA 94086
    Occupation
    Other Eyecare-Related Field
    Posts
    2,301
    Quote Originally Posted by Grubendol View Post
    bin Laden's original demands to the US before beginning this "war" were as follows:

    US forces out of Saudi Arabia (as it is holy ground)
    Oil up to $75-90/barrel (he thought the previous prices were equivalent to stealing and raping his homeland)

    The US forces left Saudi Arabia over 3 years ago, and oil is now almost $100 a barrel.

    There also haven't been any more "major" attacks and the fighting forces in Iraq aren't even associated with bin Laden (that's why when you hear them referred to by the press they are called "al-queda in Iraq")

    Seems as though we gave them what they wanted and things have gotten significantly quieter in terms Out-of-the-war-zone terrorism
    "We gave them what they wanted" ... except for one small item that wasn't spelled out in black and white on Osama's "shopping list", but is apparent by reading between those "lines":

    OBL isn't top dog in Saudi Arabia.

    The people who comprise the electorate in Saudi Arabia (and yes, they are doing some voting there of late) are getting a chance to think and live as they see fit; not as freely as some would wish, but more freely than under the "guidance" of OBL and the Taliban.


    Would-be suicide truck bomber Ahmad al Shayea is working with the Saudi government to deter young Saudis from joining or abetting al Qaeda: See Saudis play a new card in the Global War On Terror.
    Last edited by rinselberg; 12-01-2007 at 09:01 AM.

  15. #65
    OptiBoardaholic
    Join Date
    May 2003
    Location
    United States
    Occupation
    Optometrist
    Posts
    902
    Some people believe that how we live is more important than merely possessing life. John McCain has stated: “One of the things that kept us going when I was in prison in North Vietnam was that we knew that if the situation were reversed, that we would not be doing to our captors what they were doing to us.” We talk about not caving into the demands of terrorists for the simple reason than such an action would have implications much broader than itself. I believe we should take the same approach with any policy regarding torture. In the common example of impending doom to a large group of civilians, the decision to torture is going to come with a price and the decision not to torture is going to come with a price. In the long run, I think the second option is cheaper.

    By the way, to whomever gave me a negative rep with the comment, "A poll to bash Giulianti[sic], how cool": First of all, I put up the poll because I was impressed with McCain's comments the other night. It had nothing to do with Giuliani. Secondly, Giuliani's stated positions on waterboarding are reflected accurately in this poll. He bashed himself on this issue, as far as I'm concerned. Thirdly, I'm happy to bash Giuliani openly for you on this and other subjects if you would like. Given that Giuliani is pro-choice, pro-gay rights, pro-affirmative action, and pro-gun control, one could deduce that you are not one of the "conservatives" around here. Anyway, here's your man...


  16. #66
    One of the worst people here
    Join Date
    Jan 2004
    Location
    Canada
    Occupation
    Other Eyecare-Related Field
    Posts
    8,331
    Quote Originally Posted by 1968 View Post
    Some people believe that how we live is more important than merely possessing life. John McCain has stated: “One of the things that kept us going when I was in prison in North Vietnam was that we knew that if the situation were reversed, that we would not be doing to our captors what they were doing to us.” We talk about not caving into the demands of terrorists for the simple reason than such an action would have implications much broader than itself. I believe we should take the same approach with any policy regarding torture. In the common example of impending doom to a large group of civilians, the decision to torture is going to come with a price and the decision not to torture is going to come with a price. In the long run, I think the second option is cheaper.

    By the way, to whomever gave me a negative rep with the comment, "A poll to bash Giulianti[sic], how cool": First of all, I put up the poll because I was impressed with McCain's comments the other night. It had nothing to do with Giuliani. Secondly, Giuliani's stated positions on waterboarding are reflected accurately in this poll. He bashed himself on this issue, as far as I'm concerned. Thirdly, I'm happy to bash Giuliani openly for you on this and other subjects if you would like. Given that Giuliani is pro-choice, pro-gay rights, pro-affirmative action, and pro-gun control, one could deduce that you are not one of the "conservatives" around here. Anyway, here's your man...

    this is a new thing. There are a couple of people here that prefer to give negative reps instead of debate. I am actually surprised I have not received on in this thread yet. The worst thing is when they say something like "I disagree." It seems like a rather bitter, immature attitude on their part.

  17. #67
    Master OptiBoarder rinselberg's Avatar
    Join Date
    Jan 2004
    Location
    Sunnyvale, CA 94086
    Occupation
    Other Eyecare-Related Field
    Posts
    2,301
    Quote Originally Posted by Grubendol View Post
    bin Laden's original demands to the US before beginning this "war" were as follows:

    US forces out of Saudi Arabia (as it is holy ground)
    Oil up to $75-90/barrel (he thought the previous prices were equivalent to stealing and raping his homeland)

    The US forces left Saudi Arabia over 3 years ago, and oil is now almost $100 a barrel.

    There also haven't been any more "major" attacks and the fighting forces in Iraq aren't even associated with bin Laden (that's why when you hear them referred to by the press they are called "al-queda in Iraq")

    Seems as though we gave them what they wanted and things have gotten significantly quieter in terms Out-of-the-war-zone terrorism
    You know: It just hit me.

    Why didn't we put Pancho Villa in charge of Mexico when we had the chance?

  18. #68
    Banned
    Join Date
    Jun 2000
    Location
    Only City in the World built over a Volcano
    Occupation
    Dispensing Optician
    Posts
    12,996
    Ronald:
    He was, they shot him.
    However Mexico still seems to be run by bandits.

    Chip

  19. #69
    Something Wicked This WayComes AngryFish's Avatar
    Join Date
    Jun 2007
    Location
    North of 33.75 N 84.39 W -5 GMT 1137'ASL
    Occupation
    Dispensing Optician
    Posts
    296

    The "Other" Legislative Branch

    /QUOTE]
    Quote Originally Posted by shanbaum View Post
    Hmm... and where does the Constitution afford a presumption of innocence?







    I did not want the assumption of innocence to be confused with the "Separation of Church and State" and "The Right to Privacy" clauses that were concocted as single purpose legislative actions via adjudication by the court some years back in order to advance political views not supported by the constitution.






    "When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him." Jonathan Swift

  20. #70
    Objection! OptiBoard Gold Supporter shanbaum's Avatar
    Join Date
    May 2000
    Location
    Manchester, CT USA
    Occupation
    Other Optical Manufacturer or Vendor
    Posts
    2,976
    Quote Originally Posted by AngryFish View Post

    I did not want the assumption of innocence to be confused with the "Separation of Church and State" and "The Right to Privacy" clauses that were concocted as single purpose legislative actions via adjudication by the court some years back in order to advance political views not supported by the constitution.

    I'm having a little trouble parsing this, but that won't stop me...

    Even when there are specific clauses in the Constitution, all of which serve to either grant limited powers to the government or clarify limitations on the powers granted, the precise boundaries of those powers remain subjects of controversy today, just as they were when the Constitution was initially written and ratified, and when it was substantially modified after the Civil War.

    You may want to believe that the Constitution contains no requirement that there be a "wall of separation" between Church and State. Thomas Jefferson would obviously disagree with you, since he coined the phrase (see his Letter to the Danbury Baptists). While it's OK to disagree with him, you probably want to show up with more of an argument than you've alluded to here.

    As far as the "right to privacy" goes, well, that's probably the more complex of the two issues, and I don't have time to really even lay it out here. But you seem to think like Roger Pilon (of the Cato Institute) that this is a "bogus" right concocted by "activist judges". I once asked him how I could tell the difference between the bogus rights concocted by the modern judges, and the valid rights concocted by the wise judges of the past (such as the presumption of innocence). His answer was completely unsatisfying - basically, that the old judges got it right, and the new ones didn't. That just says that the validity of a "right" depends on its vintage (in the sense of, "for how long has this principle been uncontroversial"), or on one's politics, or both.

    Well, I guess that "vintage" is at least objective, in a relative sort of way. And it is fair to say that the presumption of innocence achieved axiomatic status long ago (even before the Supreme Court made it official in 1895). Interestingly, a related doctrine, that the proof of guilt in a criminal case must surpass "reasonable doubt", was "concocted" by the Supreme Court only in 1970 (in a case styled In re Winship) - all of three years before it concocted Roe v. Wade.

  21. #71
    Something Wicked This WayComes AngryFish's Avatar
    Join Date
    Jun 2007
    Location
    North of 33.75 N 84.39 W -5 GMT 1137'ASL
    Occupation
    Dispensing Optician
    Posts
    296

    Subversion of Law

    I do not share the opinion that all or even most of the decisions of the court are “concocted” but I believe it is sufficiently evident by the controversy alone, around its inconsistent interpretation and over-reaching beyond its constitutionally framed role that some decisions of the court are not in the best tradition of adjudication. If the court functioned as it should the controversy would be focused where the people have a voice and that is with the legislature. The court would be relatively free of the venom it garners because it would simply be determining the constitutionality of a given law and the checks and balances of the constitutions would allow remedy.

    Original intent is what many see as the point that differentiates the “right to privacy” and “separation of church and state” with the presumption of innocence and believe, as the constitution frames, that legislation should be done by the legislative branch of the government. This is the hallmark of representative government. The establishment of a government church, specifically what the founding fathers had fled from in England was an a original intent, not the wholesale removal of anything that suggests, hints, or mentions the possibility of a God. Laughingly to the contrary, the very inalienable rights they framed the Constitution on were in the very name of God. The role of the court is to adjudicate and not to pronounce ad hoc or subjective value judgments.

    Robert Bork states with eloquence from his book The Tempting of America the following.

    "When we speak of 'law,' we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires. Otherwise there would be no need to agree on procedures for changing the rule . . . It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges. Though that has been done often enough, it is in no sense proper."
    p. 143

    "Without adherence to the original understanding, even the actual Bill of Rights could be pared or eliminated. It is asserted nonetheless, and sometimes on high authority, that the judicial philosophy of original understanding is fatally defective in any number of respects. If that were so, if the Constitution cannot be law that binds judges, there would remain only one democratically legitimate solution: judicial supremacy, the power of courts to invalidate statutes and executive actions in the name of the Constitution, would have to be abandoned. For the choice would them be either rule by judges according to their own desires or rule by the people according to theirs. Under our form of government, under the entire history of the American people, the choice between an authoritarian judicial oligarchy and a representative democracy can only have one outcome. But this is a false statement of alternatives, for judicial interpretation of the Constitution according to its original understanding is entirely possible. When that course is followed, judges are not a dictatorial oligarchy but the guardians of our liberties."
    p. 160.
    Last edited by AngryFish; 12-07-2007 at 08:18 PM. Reason: spelling
    "When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him." Jonathan Swift

  22. #72
    Banned
    Join Date
    Jun 2000
    Location
    Only City in the World built over a Volcano
    Occupation
    Dispensing Optician
    Posts
    12,996
    If I am not mistaken the U.S. Supreme Court has agreed to decide if Constitutional protections apply to non-citizens at all. Of course the court is markedly divided between right and left (wrong).
    I hope once they rule this post will go away.

    Chip

  23. #73
    Something Wicked This WayComes AngryFish's Avatar
    Join Date
    Jun 2007
    Location
    North of 33.75 N 84.39 W -5 GMT 1137'ASL
    Occupation
    Dispensing Optician
    Posts
    296

    History Its Not Just About The Past

    Shanbaum stated,

    “You may want to believe that the Constitution contains no requirement that there be a "wall of separation" between Church and State. Thomas Jefferson would obviously disagree with you, since he coined the phrase (see his Letter to the Danbury Baptists). While it's OK to disagree with him, you probably want to show up with more of an argument than you've alluded to here.”


    Perhaps you presume too much when you suggest that your interpretation of “Separation of Church and State” is in line with what Thomas Jefferson intended, and indeed, with actions he took as president. A brief look at some post-Danbury history tells a slightly different story than supports your contention.

    “In 1803, one year after the Danbury letter, Jefferson made a treaty with the Kaskaskia Indians, wherein he pledged money to build them a Roman Catholic Church and to support their priests — all from federal funds. Jefferson apparently saw no conflict between asking Congress to implement the treaty's provisions by appropriating funds, and the prohibition that "Congress shall make no law respecting an establishment of religion . . ." In addition, Jefferson signed three extensions of "An act regulating the grants of land appropriated for Military Services, and for the Society of the United Brethren for propagating the Gospel among the Heathen." This act granted free of charge titles to sections of land to the United Brethren. In addition to holding the land in trust for Indians who were already Christians, the United Brethren used resources derived from cultivating and leasing the land to send out missionaries to proselyte among the non-Christian Indians.”

    It is reasonable to conclude that this is just one example of a Court ruling that was flawed, in so far as it was based on the Danbury letter as an understanding of the context of the letter and simple study of the actions of the author as president would clearly show poor reasoning on which to base their decision.



    For complete article follow link below.
    http://www.churchstatelaw.com/historicalmaterials/8_8_5.asp
    Last edited by AngryFish; 12-07-2007 at 10:11 PM.
    "When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him." Jonathan Swift

  24. #74
    Objection! OptiBoard Gold Supporter shanbaum's Avatar
    Join Date
    May 2000
    Location
    Manchester, CT USA
    Occupation
    Other Optical Manufacturer or Vendor
    Posts
    2,976
    Well, I suppose that qualifies as “showing up with more of an argument”. I don’t want to trivialize the discussion, but I really have a busy three weeks coming up. I’ll just point out the following:

    The court’s “constitutionally framed role” is the question here, so it’s not really helpful to say that it would be better if the court would remain within those boundaries. The boundaries are the question. You appear to accept the notion that it is “emphatically the province and duty of the judicial department to say what the law is” (to quote Marbury). You just don’t like the outcomes in some of their decisions. To borrow Bork’s words and your own, when you don’t like the outcome, it’s a “change” in the statute in question, or the Constitution, and when you like the outcome, the court is just “determining the constitutionality of a given law”.

    Of course, it’s the role of the court to decide “cases and controversies,” but in doing so it will perforce make value judgments. Phrases like “unreasonable searches and seizures” and “cruel and unusual punishment” hardly afford any clear objective meaning, and certainly, there will be fact patterns in which their meaning will be determined only with great difficulty. In arriving at those meanings, you may think that it’s better, for some reason, to apply the values of one group of people or another from the 18th century (and originalists do not agree as to which group that should be – many look to the authors or proponents of the text, Scalia claims it’s the understanding of the ratifiers, and Thomas apparently thinks it’s the author of the dictionary in use closest to the time of the ratification), instead of the understanding of the people of the present day. You can do that if you want, but it has a number of problems.

    One problem is illustrated by the example you mention of Jefferson and the Kaskaskia treaty. Let’s say that the fact that Jefferson approved of a treaty with another nation, that comprised payments to that nation to be used for religious purposes (perhaps even for the establishment of a national church in that nation), represents a change in Jefferson’s belief from his earlier “wall of separation” letter. It wouldn’t matter. It would only be Jefferson’s (or any other of the framers’) belief at the time of the composition (or ratification, depending on which flavor of originalist you are) that mattered. If he did change his mind, and believed that the meaning of the First Amendment had been fixed some twelve years earlier (presumably in accordance with his belief in 1802), why didn’t he propose an amendment to the Constitution in 1803?

    Mind you, Jefferson’s just one example, but he, along with Madison, are compelling ones; they were towering figures in the birth of the nation. The Danbury letter, however, was never the basis for a ruling (flawed or otherwise) in an Establishment clause case. I raised it because it does demonstrate something important about one of the framers.

    There are a couple of problems with the comment from Bork that you cite. First, if it’s original intent that matters, one has to consider that at the end of the 17th Century, virtually all law was judge-made (apart from the Constitution), especially the kind of law that showed up in litigation. The idea that statutes would come to dwarf the common law would be completely foreign to the generation of the framers – the beginning of that process was 100 years in the future. And of course, for its first 80 years, Constitutional issues were incredibly sparse, and had almost no impact in the courts where almost all activity occurred, that being the state courts. The framers might be more shocked by the astounding volume of federal statute law we have today, than by the court’s recognition that there’s a “right to privacy” that requires a limitation on the states’ power to prohibit a woman from having an abortion (though I freely admit that they would find that shocking; women’s equal status under the law would be another notion quite foreign to the vast majority of 18th century Americans).

    The other interesting thing about citing Bork’s writings on the primacy of the legislature in determining the law, is that he’s one of the few individuals in our history who can be said to have developed “a jurisprudence” as a scholar, to have had that jurisprudence repudiated by the branch of the national legislature charged with the responsibility of concurring in the appointment of Supreme Court justices.

    I apologize for cutting this discussion short while writing at such length, and also for the probable incoherence of what I’ve just written, but I really have a lot of work to do. To borrow a phrase from Adams, I don’t have time to make it any shorter. Maybe we can pick this up again after Christmas.
    Last edited by shanbaum; 12-14-2007 at 08:50 AM. Reason: Miscounted the centuries...

  25. #75
    Banned
    Join Date
    Jun 2000
    Location
    Only City in the World built over a Volcano
    Occupation
    Dispensing Optician
    Posts
    12,996
    The right of privacy to limit the states rights on "a woman's rights to have an abortion" is totally foriegn to the majority of citizens today. If an actual referendumem election where to be run today, abortion would be outlawed.
    The current interpretation of "immenent domain" being the rights of whomever will pay the highest taxes wouldn't last a minite in a referendum election, but the U.S. Supreme court says it's Constitutional when the citizenry is damn clear it isn't.
    The legality of "Sanctuary Cities" and the right of people to cross our borders, use our Constitutional Rights, our taxpayer's funds, etc. without "benefit of legal status" is also clearly not the will of the people or law, but there it is.
    In fact I think the Supreme Courts actual powers are limited to settling disputes between citizens and govenments against the several states for the most part and this is hardly the role they fill today.

    Chip

Thread Information

Users Browsing this Thread

There are currently 1 users browsing this thread. (0 members and 1 guests)

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •