From: rocky@NeoSoft.com (Joe Mullally)
Subject: Re: Constitutional Interpretation (was Re: Pro-Choice)
Organization: NeoSoft Communications Services -- (713) 684-5900
Distribution: tx
Date: Sun, 30 Aug 1992 16:26:41 GMT

In article <Ns19PB1w165w@keys.lonestar.org> cwinemil@keys.lonestar.org (Chris Winemiller) writes:
>rocky@NeoSoft.com (Joe Mullally) writes:
>
>> In article <P5sZPB4w165w@keys.lonestar.org> cwinemil@keys.lonestar.org (Chris
>> Winemiller) writes:
>> 
>> >I think I'll elaborate a bit here: I accept the purpose of "justice" as long
>> >as "justice" is defined as the intent of the law, as stated in its wording,
>> >as intended by the lawmakers (which intent one can glean from arguments by
>> >them within and without Congress).  Justice is then what the people, through
>> >their legislators, desire to be encoded in law.  A judge, then, is prevented
>> >from enforcing his own personal definition of "justice" which he makes up
>> >according to his own moral view.
>> 
>> 	So, all of our justices know exactly and explicitly what the
>> FF's meant by "due process", "equal protection", "unreasonable search
>> and seizure", "cruel and unusual", and can happily leave their own 
>> personalities at the door, and just go by the letter of the law.
>
>Yes.  Justices (and us for that matter) _can_ know what those phrases mean,
>because words (in their historical and cultural context) have meaning.

	Chris, if they have to go to "historical and cultural context"
to find the exact meaning of these phrases, doesn't it make you wonder why
the FF's didn't just spell it out? For "cruel and unusual", why didn't they
list 'em? For "due process", why not spell it out? That's like a referee
at a boxing match saying "You know the rules." except that this boxing
match was the biggest experiment in history. Did our FF's say "You know the
rules."? And, since we agree the justices must look outside of the
Constitution to understand it and put it into practice, are you saying that
only one answer could be found, that bias might not affect each and every
search, and that you can name that one true answer? Bork?

>> I will stop here to point 
>> out the benefit of claiming "original intent', as has Bork. It's a wolf
>> (interpretation) in sheep's (non-interpreted, what they _reall_ meant)
>> clothes.
>
>Exactly the opposite is true.  One abandons "original intent" because one
>believes that words have no meaning, which is nothing short of accepting
>chaos.

	Examine this: "due process". What meaning has this term? One
abandons "original intent" when one applies extra words to this, yet
one must further define "due process". Yes, by studying ECL and such,
we can very nearly assess what they meant by due process. There will
still be variations in interpretation. Finding, then, a justice who
agrees with you is a matter of finding one with such an interpretation,
_not_ finding a judge who'll achieve your agenda. BTW, I hope this
court has the chance to do Roe/Wade, because I think they'll uphold
most of it. Reading Roe/Wade, I think it's restrictive.

From "The Ethics of Abortion", by R. Baird & S. Rosenbaum , 1989:
"
Mr. Justice Blackmun delivered the opinion of the Court....
	To summarize and to repeat:
1.A state criminal abortion statute of the current Texas type, that excepts 
from criminality only a life-saving procedure on behalf of the mother, without
regard to pregnancy state and without recognition of the other interests
involved, is violative of the Due Process Clause of the 14th Amendment.
	a)For the stage prior to approximately the end of the 1st trimester,
the abortion decision and its effectuation must be left to the medical
judgement of the pregnant woman's attending physician.
	b)For the stage subsequent to approximately the end of the 1st
trimester, the State, in promoting its interest in the health of the mother,
may, if it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health.
	c)For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life may, if it chooses, regulate, and
even proscsribe, abortion except where it is necessary, in appropriate
medical judgement, for the preservation of the life or health of the mother.
are available....
"
 
>  If the truth be known, I think that original intent has been largely
>abandoned because the offending justice can then exercise a tremendous
>amount of power (s)he was never intended to exercise.  And that's very
>dangerous, indeed.  I want justices who understand that they, too, must
>submit to _laws_, not create them or "sit above" them.  Can you say
>"oligarchy"?

	They should not, perhaps, be so appointed, though I still think
the process is behaving much like it was intended- sway to the left,
sway to the right, bend, don't break. The wording of the Constitution
is not so rigid as to easily break; I think it was meant to bend. Isn't
that basic architecture?

-- 
-------------------------------------------------------------------------------
Joe Mullally (rocky@sugar.neosoft.com) PH:713-681-2495
"They say 'David, what shall I do? They wait for me in the hallway'.
I say 'Don't ask me- I don't know any hallways."- David Bowie, "Scary Monsters"
Newsgroups: tx.politics,alt.politics.clinton