Giuliani gives speech before Federalist Society!

[johnwk]

Giuliani Vows Conservative Legal Agenda (http://www.cbsnews.com/stories/2007/11/16/politics/main3516558.shtml)

In Speech Before Federalist Society, GOP Hopeful Pledges To Appoint Judges Like Scalia, Roberts


WASHINGTON, Nov. 16, 2007

From the article:


"We're seeking to find judges who understand the very, very important concept that judges exist to interpret the law, not to invent the law," he said.

Justices appointed to the SCOTUS are not given the latitude by our Constitution to “interpret” the supreme Law of our land [our Constitution]. They have taken an oath to support and defend “this Constitution”.


When questions arise under our Constitution, the SC’s job is not one of interpretation. Its job is to document a preponderance of evidence establishing the intentions and beliefs under which our Constitution was adopted as recorded in historical records during the time our Constitution was being framed and ratified. Following this rule is the cutting edge between those who support and defend “this Constitution“ from those who “interpret” our Constitution in order to subjugate it.


From the article and in reference to Giuliani:


He argued that nominees should be judged on their qualifications, honesty and integrity, not their judicial philosophy. He said such a standard should apply whether the president is a Republican, nominating conservative judges, or a Democrat nominating



The truth is, those who support and defend our constitutional system do want Justices nominated who do have a judicial philosophy. That judicial philosophy would be ___ carrying out the intentions and beliefs under which our Constitution was adopted, and just happens to be the most fundamental rule of constitutional law!

Honesty and integrity, the Giuliana stated standard for nominees, is all well and fine, but only if they are exercised in documenting the intentions and beliefs under which our Constitution was adopted and then working to enforce them.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to make the Constitution mean whatever they wish it to mean.

[DesertFox]

When questions arise under our Constitution, the SC’s job is not one of interpretation. Its job is to document a preponderance of evidence establishing the intentions and beliefs under which our Constitution was adopted as recorded in historical records during the time our Constitution was being framed and ratified.Sez hoo? U? :question:

[Maggie_T]

(shrug) With a Republican president (even a RINO) there's always the hope and the chance that we will get more constructionist judges. With a demunist president all we are going to get are demunist activist judges who will rule from the bench in favor of abortion on demand, gay marriage, banning Christmas, etc. And you can take THAT to the bank.

It's that simple.

[johnwk]

When questions arise under our Constitution, the SC’s job is not one of interpretation. Its job is to document a preponderance of evidence establishing the intentions and beliefs under which our Constitution was adopted as recorded in historical records during the time our Constitution was being framed and ratified.
Sez hoo? U?

Abiding by the intentions and beliefs under which our Constitution was agreed upon is the most fundamental rule of constitutional law!

Those intentions and beliefs can be documented using a variety of historical documents, such as the Federalist and Anti Federalists papers, Madison’s, Yates, Hamilton’s etc., Notes on the Convention, and of course, Elliots Debates which records some of the debates which took place in the state legislatures during the ratification process of the Constitution. And with regard to the 14<SUP>th</SUP> Amendment, the Congressional Globe records the debates during which time both the first Civil Rights Act , and the 14<SUP>th</SUP> Amendment , which was intended to make the first Civil Rights Act constitutional , and therefore documents the intentions for which the 14<SUP>th</SUP> Amendment was adopted.

Here are some important references which may be useful to you:

16 Am Jur 2d Constitutional law
Par. 92. Intent of framers and adopters as controlling.

“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers“

"On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

“A constitutional provision is to be construed, as statutes are, to the end that the intent of those drafting and voting for it be realized."(Mack v Heuck (App) 14 Ohio L Abs 237)

"No part of the constitution should be so construed as to defeat its purpose or the intent of the people in adopting it."Pfingst v State (3d Dept) 57 App Div 2d 163 .

"the rule being that a written constitution is to be interpreted in the same spirit in which it was produced" Wells v Missouri P.R. Co.,110Mo 286,19SW 530.

"Where language used in a constitution is capable of two constructions, it must be so construed as to carry into effect the purpose of the constitutional convention.” Ratliff v Beal, 74 Miss.247,20 So 865 .
"In construing federal constitutional provisions, the United States Supreme Court has regularly looked for the purpose the framers sought to accomplish.”Everson v Board of Education, 330 US 1, 91 L Ed 711,67 S Ct 504, 168 ALR 1392.

"The primary principle underlying an interpretation of constitutions is that the intent is the vital part and the essence of the law." Rasmussen v Baker, 7 Wyo 117, 50 P 819.

And, see Rhode Island v. Massachusetts, 37 U.S. (12Pet.) 657,721(1838), in which the Supreme Court has pointed out that construction of the constitution "...must necessarily depend on the words of the Constitution; the meaning and intention of the conventions which framed and proposed it for adoption and ratification to the Conventions...in the several states...to which this Court has always resorted in construing the Constitution."

Fact is, even Congress understands this fundamental principle of constitutional law, even though they no longer follow it.:

"In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it...A construction which would give the phrase...a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution."Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967)

Also see vol.16, American Jurisprudence, "Constitutional Law", Par. 130 "The Federalist and other contemporary writings." which are acknowledged sources from which to determine the “intent” of those who framed and ratified the constitution.

In addition, to the above documentation, you may find a recent Supreme Court decision quite interesting in which the SCOTUS references the Federalist Papers 18 times in order to document the legislative intent of our Constitution and enforce it. See: UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) Also see: GREGORY v. ASHCROFT, 501 U.S. 452 (1991) and: Nixon v. United States (91-740), 506 U.S. 224 (1993).

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to make the Constitution mean whatever they wish it to mean.

[DesertFox]

I see. YOU say so. Any reason anyone should take YOUR say-so over that of John Jay and John Marshall? They were learned men with spotless, towering reputations. What authority do you bring to the issue? Are you a Constitutional scholar? a law professor? a lawyer? Why should anyone care what YOU say about it?

The problem wasn't then and isn't now that justices interpret the Constitution, but that they've gone beyond that to making law, which is indeed outside the Constitution.

You might want to think about the sources you cite to see what they actually mean. You cite this, for example: “The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers“ The word "construction" here doesn't mean "to build." It means "to construe," which means "to interpret."

[johnwk]

I see. YOU say so.


Thank you for your pompous and unsubstantiated opinion.


JWK


Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to make the Constitution mean whatever they wish it to mean.

[DoctorDoom]

"Interpret" has a wide interpretation. Roe v Wade was the result of interpretation. The "wall of separation of church and state" was interpreted into existence. The people of the Second Amendment being an organized militia rather than the people of the First, Fourth, Ninth and Tenth Amendments is the consequence of interpretation.

When a ruling is based on what the FF MIGHT have wtitten into the Constitution had they known today's facts, or on what they "probably" had in mind when writing it, it's usually to legitimize or to forbid something based on liberal politics.

[DesertFox]

Thank you for your pompous and unsubstantiated opinion. :lol: You're a funny guy, johnwk. YOU are the one with the pompous and unsubstantiated opinion, and you accuse me of pompous and unsubstantiated opinions.

"Interpret" has a wide interpretation. Roe v Wade was the result of interpretation. The "wall of separation of church and state" was interpreted into existence. The people of the Second Amendment being an organized militia rather than the people of the First, Fourth, Ninth and Tenth Amendments is the consequence of interpretation. Recall that I said: The problem wasn't then and isn't now that justices interpret the Constitution, but that they've gone beyond that to making law, which is indeed outside the Constitution. An interpretation of the Constitution clarifies what it meant, staying within its intent. When you stray from the intent, you're no longer interpreting but are making law.

In his defensiveness, johnwk doesn't seem to grasp that I don't disagree with him on the issue, but I do disagree with him apparently using himself as an expert on Constitutional law on a par with John Jay and John Marshall. If he comes up with something original that no one has come up with before, that's one thing; but the matter of interpretation has been addressed by men who would be on our side of the issue against modern liberals, men of historic reputation, and he's going to have to do better than he has so far.

[RogerFGay]

(shrug) With a Republican president (even a RINO) there's always the hope and the chance that we will get more constructionist judges. With a demunist president all we are going to get are demunist activist judges who will rule from the bench in favor of abortion on demand, gay marriage, banning Christmas, etc. And you can take THAT to the bank.

It's that simple.

I'm not sure there is such a thing as a non-constructionist judge these days. Undoing the growth of the "living document" that's taken place over the past century (and so very rapidly in the past half century) would re-write all the text books.

I've been chatting about the crime of reclassifying areas of civil law as "social policy" in another thread. Oh what a twisted web is the history of that little pile of doodie. I found it so strange that there's this concept that has rules for constitutional interpretation that are in no way related to anything that it says in the constitution - so I asked a bunch of constitutional scholars around the country (really - just emailed a bunch with the question and got a good number of responses).

So - you probably recall that there was a time during WWII when the US rounded up Asians and sent them to internment camps. Entirely unconstitutional you can opine, to do so based on their national origin rather than evidence of actual crimes. Anyway:

Korematsu v United States
established (in the minds of commentators) the principle that Congress could will something to be treated unconstitutionally if they regard it as important (as a matter of fact, and to that eventual effect, even though this is not what the actual SC decision says - see link below for text of decision).

Brown v. Board of Education (Topeka)
establishing basis for federally supervised social policy related to race

Craig v. Boren
admin. use of gender classification unconstitutional

From this, the USSC built an entirely new set of rules based on extra-constitutional (constructionist, writing their own constitution in effect) rules for dealing with social policy issues over-seen by the federal government, whenever Congress feels the urge to write unconstitutional laws to allow federal involvement in state and private issues. The model for social policy establlished early is in welfare - where no one in or out of the program has any individual rights. Similarly, "economic policy" like taxes - you have no constitutional basis for getting your tax rate lowered - unless someone is trying to force you to pay a different rate than everyone else (similarly situated).

So that's what you have in family law today. Congress decided to get involved, the money grew, it got more corrupt, the fed got more involved, more money flowed, the corruption ticked off the victims so they filed class action suits, and courts responded by reclassifying family law as social policy. New rules under the constitution - the only "right" is equal treatment - so now if you want to get married to your vacuum sweeper and make a good statistical case (lots of people do it, relationships last a while, there are fewer domestic violence claims and divorces in such relationships), then you're entitled to get your relationship with your vacuum sweeper reclassified as marriage, with all the rights and priveledges that implies.

You can find links to full text at:
http://en.wikipedia.org/wiki/Korematsu_v._United_States
http://en.wikipedia.org/wiki/Brown_v._Board_of_Education
http://en.wikipedia.org/wiki/Craig_v._Boren

[Maggie_T]

I'm not sure there is such a thing as a non-constructionist judge these days. Undoing the growth of the "living document" that's taken place over the past century (and so very rapidly in the past half century) would re-write all the text books.


Sigh. Oh, very well. Let me rephrase that.

"With a Republican president (even a RINO) there's always the hope and the chance that we will get more conservative judges. With a demunist president all we are going to get are demunist activist judges who will rule from the bench in favor of abortion on demand, gay marriage, banning Christmas, etc. And you can take THAT to the bank."

There. Better?

:rolleyes:

[johnwk]

"Interpret" has a wide interpretation. Roe v Wade was the result of interpretation. The "wall of separation of church and state" was interpreted into existence. The people of the Second Amendment being an organized militia rather than the people of the First, Fourth, Ninth and Tenth Amendments is the consequence of interpretation.
When a ruling is based on what the FF MIGHT have wtitten into the Constitution had they known today's facts, or on what they "probably" had in mind when writing it, it's usually to legitimize or to forbid something based on liberal politics.

Exactly! And there is a vast difference between interpreting what the Constitution means and documenting the intentions and beliefs under which the various provisions of our Constitution were adopted.

Roe v Wade was in fact “interpreted” in such a manner as to intentionally defeat and subjugate the very intentions for which the 14<SUP>th</SUP> Amendment was adopted, and also “interpreted” to subjugate the very intentions for which our Bill of Rights was adopted, the intentions being, to add additional restrictive clauses limiting our federal governments powers!

As to the intention of the 14<SUP>th</SUP> Amendment, it had nothing to do with the creation of privacy nor is there any historical documentation from those who framed and ratified the 14<SUP>th</SUP> Amendment to support that interpreted invention.
The SC used the case to overturn federalism and state laws adopted by the people within their states regarding abortion The Court almost came out and stated it was imposing its whims and fancies which they felt should be the law!


This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ,as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. ___ ROE v. WADE, 410 U.S. 113 (1973) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113)

As I previously indicated, the Ninth Amendment [part of our federal Bill of Rights] was irrefutably intended and adopted for a specific purpose ___ to add additional restrictive clauses limiting our federal governments powers!

The very intentions of those who framed and ratified the federal Bill of Rights is documented in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 (http://www.yale.edu/lawweb/avalon/const/resolu02.htm)


THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:


And, it is also important to note that Madison states the following with regard to adopting the Bill of Rights, [which includes the Ninth and Tenth Amendments] and their adoption to preserve and protect “federalism“:


“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution (http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=226)

As to the application of the 14th Amendment regarding abortion based upon the intentions and beliefs under which the 14th Amendment was adopted, the case can be made that__no state may enact legislation regarding abortion based upon race, color or previous condition of slavery. This would be in harmony with the intentions for which the 14<SUP>th</SUP> Amendment was adopted. But the SC did not make this case.

The People, when adopting the 14th Amendment, intended to prohibit state sponsored discrimination, “black code laws“, [discriminatory law based upon “race, color, or former condition of slavery] and insure that all people, regardless of race, color, or former condition of slavery, would enjoy a constitutional guarantee to make and enforce contracts, to sue, to inherit and purchase property, etc., as was then enjoyed by white citizens. This was the prevailing and narrow objective of the Fourteenth Amendment.

A research of the House and Senate debates which framed both the 1st Civil Rights Act and the 14th Amendment, which was intended to incorporate the objectives of the Civil Rights Act into the Constitution --- thereby making the first Civil Rights Act constitutional --- contains not one shred of evidence the amendment was intended to prohibit or allow abortion and then allow the SCOTUS to impose its whims and fancies concerning abortion upon the various states.

As a matter of fact, there is an abundance of documented evidence the Amendment was specifically intended to apply in a very narrow area…to prohibit state authorized discrimination, unequal law, based upon “race, color, or previous condition of slavery…” As Rep. Shallabarger, a primary supporter of the Fourteenth Amendment when it was being debated elaborated:


“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ see:Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)

So, contrary to the Court’s assertion, neither the Fourteenth Amendment’s legislative intent, nor the Ninth Amendment‘s legislative intent, supports the SC‘s invention of privacy with regard to forbidding State Legislatures to regulate abortion as may be allowed under each State‘s Constitution.

But if I am in error, those who object are free to provide supportive documentation from the Congressional Globe, 39th Congress during which time the amendment was being framed and ratified.

My reason for bringing this up is to observe the most fundamental rule of constitutional law---abiding by the intentions and beliefs under which the Constitution was agreed to.

See: 16 Am Jur, Constitutional Law, “Rules of Construction, Generally”

Par. 88--Proceedings of conventions and debates.


Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted ) Also see par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

And, especially study:

CONSTRUCTION OF CONSTITUTIONS

par. 92--“Intent of framers and adopters as controlling”
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.” (numerous citations omitted )

Sorry for the length of the post but I thought documented evidence rather than personal opinions as generally given out by liberals may be interesting to the those who support and defend our written Constitution and the intentions and beliefs under which it was adopted.

Regards,
JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to make the Constitution mean whatever they wish it to mean.

[Riverboat]

(shrug) With a Republican president (even a RINO) there's always the hope and the chance that we will get more constructionist judges. Having watched a good part of Giuliani's speech, I assure you (plural sense) that he turned in a stellar performance. How many other candidates have spoken for that august body?

Also, consider the fact that the Democrats demonize the Federalist Society. Remember the attempt to smear Roberts with his association with them?

All my apprehensions over Giuliani are starting to melt away. Indeed, at this writing I'm contemplating sticking a Rudy 2008 sign in my yard.

[Wyatt_Junker]

I like Rudy's forehead. Its polished like the hood of my wife's Sienna mini-van. I also like his teeth. They're fierce. They remind me of kitchen appliances.

I can't wait until he audtions for Dancing With The Stars. Maybe he'll dance with Ohno, that failed Olympian, and the two of them will perform the quickstep.

McCain would have totally owned that show though. And Romney would have just dirty danced(lambatta'd) that Marie Osmand into unconsciousness as he mormoned her.

I could see Right Said Fred MC.

[johnwk]

All my apprehensions over Giuliani are starting to melt away. Indeed, at this writing I'm contemplating sticking a Rudy 2008 sign in my yard.

That's funny, sad but funny!

[Riverboat]

Why so?

[Lazarus]

Giliani's speach was indeed well done - On that point I agree with Riverboat... Im not sure all my concerns with him are melting away - in fact I can tell you, they aren't - but on this one issue, I'm becoming more satisfied with Rudy... I feel like I can check that one off...

I still have a couple more big ones I'm wresting with... Rudy needs to meet with me and work out his policies...




PS: Wyatt, you slay me, Bro...:rotflmbo:

[The_Elucidator]

PS: Wyatt, you slay me, Bro...:rotflmbo:

No kidding!! I have learned not to eat around the computer while reading one of Wyatt's posts.

[Lazarus]

:roar:No kidding!! I have learned not to eat around the computer while reading one of Wyatt's posts.