“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand and hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” - Thomas Jefferson https://www.goodreads.com/quotes/94629-i-am-not-an-advocate-for-frequent-changes-in-laws How does this not undercut Scalia’s whole theory of “Originalism,” and the majority view in the Heller case or any gun relating case?
It's always good to read something new from Thomas Jefferson. As a non-lawyer who has read one of Scalia's books, it seems to me originalism refers more to the intentions of the framers regarding the enumerated powers of the new government. It goes without saying that the document has mechanisms for change, in accordance with Jefferson's thoughts. I don't see how that changes or undercuts Heller at all.
“New?” Sure it does, Scalia used his “Originalism” to bypass the prefatory clause, his supposed understand of the intentions of the Founders rationalized his dismissal of the quagmire that had restricted any prior SCOTUS from issuing rulings on guns
Concerning the "progress of the human mind," who gets to determine what is more developed and more enlightened? When it comes to new discoveries and new truths, who gets to determine which are important enough to change our founding documents and institutions? When opinions and circumstances change, who will determine what should be incorporated? The process for changing laws and institutions are clearly outlined, and the laws and institutions can be changed whenever that process is completed. Is the process difficult? Of course it is, and that is a very good thing. Otherwise we as a people would be ruled by every whim and fancy of our representatives, and that would not be a good thing.
Good question, who gets determine, common sense, certainly a wiser judge than someone saying they know what the Founders were thinking, as Jefferson says, otherwise, “we might as well require a man to wear still the coat which fitted him when a boy”
Oh I know how the Amendment reads. I was an English major. What you describe as a prefatory clause is traditionally described as a dependent clause. That means it cannot stand on its own, unlike the independent clause that makes up the rest of the amendment. The clause is a sort of philosophical statement, but it commands nothing and prohibits nothing. The independent clause is a sentence in its own right. It prescribes a particular right of the people, and it prohibits the newly formed government from infringing on that right.
If you want the Constitution changed, then there's a constitutional method to do that. Stop crying and use it, if you think you have the votes.
I agree, it is a conundrum. However, we surely must realize that when the SC rules in line with our personal opinions and beliefs, we feel they have made a "common sense" decision, but when the SC rules against our personal opinions and beliefs, they are a bunch of idiots. What would you change to ameliorate the situation?
So a operative clause is no longer conditional upon the prefatory clause? Interesting given no SCOTUS has ever reached that conclusion, not even this one, Scalia just ignored it, rationalized such was his “Originalism” bullshit
Not this SC, they rule in line with their personal beliefs, common sense shows us less guns equate to less gun violence, the world proves it, America has more guns than people and still leads developed nations in the degree of gun violence, more guns and easier access don’t make us safer, yet, as we saw yesterday, the Supreme Court thinks otherwise And I have no problem with some of the Court’s rulings, but the Court has to justify their decisions with rational explanations, and this Court hasn’t, if anything, they have prostituted the Constitution to fit what they were always determined to decide
All you can really do is have a SC that mirrors the majority of US society as much as possible.... Which we clearly do not have today...
Do you suppose that Jefferson wanted to induce anarchy? Jefferson was, in writing, very against the emotional mob. I fear you don't understand the actual context of what originalism means here.
What do you do if changes become impossible though? Which is the current state we see ourselves in. In this current environment, it is literally IMPOSSIBLE to create law that is not fully partisan.
“Originalism,” least Scalia’s “Originalism” means nothing here And Jefferson is simply saying that even the Constitution has to adapt to changing times, it is not stuck in, nor confined to, the understanding of the world in the 18th Century, which is exactly what he did when he purchased Louisiana
I would change peoples' responses to decisions. Debate them all you like. Once it is decided then let it go and adapt. It is the highest court in the land. It is the final word like it or not.
Jefferson was talking about replacing/amending the constitution at regular intervals. We haven't. Thus, your point is moot.
Instead we have ignored the constitution and adopted unconstitutional legislation instead. The effect is the same.
Might you expand a bit on that? Since when has the independent clause been conditional upon the 'prefatory' clause? The independent, operative clause, can stand alone. The 'prefatory' dependent clause cannot stand alone. Yes it's a grand philosophical statement that a well-regulated militia, being necessary to the security of a free state...... But that grand philosophical statement commands nothing under the law, and neither does it prohibit anything. The right of the people to keep and bear arms shall not be infringed upon is the message. It affirms the right and commands the government to not infringe upon that right. Take away the grand philosophical statement and nothing changes.
Jefferson was referring to worldly physical actual change, not the changing of people's minds and thinking about stuff