From: cramer@optilink.UUCP (Clayton Cramer)
Newsgroups: misc.legal
Subject: Re: Original Intent
Date: 8 Sep 92 17:18:37 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1992Sep3.132451.3016@midway.uchicago.edu>, thf2@ellis.uchicago.edu (Ted Frank) writes:
> In article <12096@optilink.UUCP> cramer@optilink.UUCP (Clayton Cramer) writes:
> >Could you provide some evidence that original intent was this broad?  
> Can you provide some evidence that original intent is of much relevance?

The alternative is the "what do we want it to mean today" approach
to which liberals are so prone.  Either the Bill of Rights reflects
some transcendent values, or we might as we just scrap it, and
trust the majority to make the right decisions.

> Unless you're Edwin Meese-esque, you probably accept that the Eighth
> Amendment prohibiting cruel and unusual punishment includes in its
> scope the prohibition of pillories, of whipping, of the removal of part
> of an ear, even though all of these were not considered "cruel and unusual"
> in 1791.  

Edwin Meese isn't one of my favorite politicians either, but do
you have any evidence that he actually holds those views?

> Even if you don't, how would you amend the constitution to forbid such
> punishments?  Another amendment forbidding "cruel and unusual" punishments,
> but this one with a different intent?
> -- 
>           ted frank | thf2@midway.uchicago.edu | standard disclaimers

I think a case can be made that the use of absolutist language
in some of the amendments ("Congress shall make no law...", 
"the right of the people to keep and bear arms, shall not be
infringed...", "No person shall be held to answer for a capital,
or otherwise infamous crime...", "no fact tried by a jury shall
be otherwise reexamined in any court of the United States...") 
and considerably vaguer language in others ("against unreasonable 
searches and seizures... but upon probable cause", "a speedy and 
public trial", "cruel and unusual punishments...") shows that
Madison recognized that there were some transcendant values
that were clear-cut and unambiguous, and there were other
rights that were much more difficult to pin down with any great
certainty.

My reason for this comes from examining the correspondence
between Jefferson and Madison on the subject of a Bill of Rights
(ignore the index entry codes, etc.)::

              .i.Madison, James;'s  actions  in  drafting  the  Bill  of

            Rights were not sudden; Thomas Jefferson, then ambassador to

            France, had carried on a lengthy correspondence with Madison

            about the  need for a Bill of Rights, since at least July of

            the previous  year.   Jefferson's letter  of July  31, 1788,

            includes a  list of  rights that he felt should be included,

            including a  prohibition on  "standing  armies  in  time  of

            peace."   In discussing  the need  for  a  Bill  of  Rights,

            .i.Jefferson, Thomas;  recognized that  a general  principle

            was occasionally a mixed blessing:
              
              The few  cases wherein these things may do evil, cannot
              be weighed against the multitude where the want of them
              will do evil.102
              

            Jefferson then discussed how the suspension of habeas corpus

            had been  abused so  often by the government of England that

            the few times it had:
              
              done real  good, that operation is now become habitual,
              & the minds of the nation almost prepared to live under
              it's [sic]  constant suspension...   If no check can be
              found to keep the number of standing troops within safe
              bounds, wile  they are  tolerated as  far as necessary,
              abandon them altogether, discipline well the militia, &
              guard the magazines with them...  My idea then is, that
              tho' proper  exceptions  to  these  general  rules  are
              desirable & probably practicable, yet if the exceptions
              cannot be  agreed upon,  the establishment of the rules
              in all cases will do ill in very few.  I hope therefore
              a bill  of rights  will be  formed to  guard the people
              against the  federal government,  as they  are  already
              guarded  against   their  state   governments  in  most
              cases.103
              

              In response to .i.Jefferson, Thomas;'s letter, .i.Madison,

            James;'s letter  of October 17, 1788, described his thoughts

            on how a Bill of Rights should be drafted:
              
              Supposing a  bill of  rights to  be proper the articles
              which ought to compose it, admit of much discussion.  I
              am inclined  to think  that  absolute  restrictions  in
              cases that  are  doubtful,  or  where  emergencies  may
              overrule them,  ought to  be avoided.  The restrictions
              however strongly marked on paper will never be regarded
              when opposed  to the  decided sense  of the public; and
              after repeated  violations in extraordinary cases, they
              will  lose  even  their  ordinary  efficacy.  Should  a
              Rebellion or  insurrection alarm  the people as well as
              the Government,  and a  suspension of the Hab. Corp. be
              dictated by the alarm, no written prohibitions on earth
            ____________________
              102 Hobson & Rutland, 11:212.
              103 Hobson & Rutland, 11:213.



                                        -120-

                         THE LEGISLATIVE HISTORY OF THE SECOND AMENDMENT


              would prevent  the measure.   Should an army in time of
              peace be  gradually established  in our neighborhood by
              Britn: or  Spain, declarations  on paper  would have as
              little effect  in preventing  a standing  force for the
              public safety.   The best security agst. these evils is
              to remove the pretext for them...104
              

              .i.Madison, James;'s  perceptions of  how  republics  work

            certainly seems more realistic than .i.Jefferson, Thomas;'s;

            the internment  of Japanese-Americans  during World  War  II

            shows that  when the desire is strong, parchment protections

            give way.  In a similar way, after the Civil War, at the end

            of the  Roaring Twenties,  and in  the turbulent  1960s, the

            paper protections of the Second Amendment gave way.

              Madison's reluctance  to draw the sort of strict line that

            .i.Jefferson, Thomas; proposed may be seen in the qualifying

            phrases, "but  in a  manner warranted  by law"  in the Third

            Amendment,   and   such   broadly   interpretable   phrases,

            "Excessive bail,"  "excessive fines,"  and "without probable

            cause."  Yet other amendments proposed by .i.Madison, James;

            ring with .i.Jefferson, Thomas;ian certainty:
              
              The civil  rights of  none shall be abridged on account
              of religious  belief or worship, nor shall any national
              religion be  established, nor  shall the full and equal
              rights of  conscience be  in  any  manner,  or  on  any
              pretext infringed.
              
              The people  shall not  be deprived or abridged of their
              right  to   speak,  to   write,  or  to  publish  their
              sentiments...
              
              The right of the people to keep and bear arms shall not
              be infringed;...105
              


            ____________________
              104 Hobson & Rutland, 11:299.
              105 Hobson & Rutland, 12:201.



                                        -121-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE



              Those who  see the  broad and  sweeping  language  of  the

            Second Amendment as reflecting a broader protection than was

            really  intended   should  consider  this  exchange  between

            .i.Madison,  James;  and  .i.Jefferson,  Thomas;.    Madison

            clearly expressed  his desire  to avoid  unnecessarily broad

            declarations of  rights; because they would be trespassed by

            the majority,  such declarations  will lose their importance

            in the  public mind.  Not surprisingly, we find that some of

            the rights  that Madison  sought to protect are sufficiently

            qualified and  limited that  they would  not be  a  hopeless

            obstacle  to   the  public  desires;  but  the  rights  most

            important to  Madison  j  including  the  individual  rights

            section of  the Second  Amendment and the protections of the

            First Amendment  j are  written  in  the  broadest  possible

            language, leaving  no room  for the majority to restrict the

            individual rights.



-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
Alcohol prohibition didn't work; drug prohibition doesn't work; gun
prohibition won't work.