Day: August 21, 2023

The Constitution And Originalism

Note:  This is a post from my secondary blog, Gulf South Free Press….I am re-posting it here for all those readers that may not follow my other blog.

College of Political Knowledge

Subject:  US Constitution

There are those that feel the US Constitution should be interpreted as it is written….these people are called “Originalists”…..

But what does that really mean?

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have.

Originalism is the idea that we should interpret the Constitution with its original meaning. But what, exactly, is the Constitution’s “original meaning”?

Some originalists argue it’s the meaning as understood by those who ratified the Constitution in the various state conventions, or the public that elected those ratifiers. Others say it’s the understanding of a reasonable, well-educated reader. Still other scholars claim the Constitution is written in legal language and should be interpreted with its original “legal” meaning. With this approach, for example, the term “ex post facto laws” likely refers only to retroactive criminal laws, and not to all retroactive laws.

I bring all this up because the SCOTUS of today is loaded with so-called ‘originalists’ and that could have a lasting influence over American society for decades.

Does ‘originalism’ have a place in our history?

I think not because the Founders were smarter than to believe that the ideas they put forward would last an eternity…..

But I am not alone…..

Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal. Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.

https://slate.com/news-and-politics/2021/03/neil-gorsuch-nondelegation-bagley-mortenson.html

What do you think?

Was the Constitution meant to last an eternity or were the Founders just giving us a guideline to follow and never meant to be eternal?

For instance the 2nd amendment…..when written we were using muskets for protection and providing meat for the table…..did the Founders foresee the advancements is firearms or is it up to changes as the weapons change?

Thoughts?

Be Smart!

Learn Stuff!

I Read, I Write, You Know

“lego ergo scribo”

Once Upon A Time In The East

There was this minor mash-up that sent the whole world into a patriotic fervor……so much so that countries invested billions in the probable outcome.

Then when all was mundane the news came of the great ‘counteroffensive’ to end the troubling conflict…..and this is where I pick up with this post….

After more than two months of fighting, Ukraine has failed to make a major breakthrough in its counteroffensive and American intelligence officials now believe it won’t meet its main objective, the Washington Post reports, citing sources in the intelligence community. The Post’s sources say US officials have predicted that the Ukrainian push won’t reach the Russian-occupied southeastern city of Melitopol, meaning they won’t be able to cut Russia’s land bridge to Crimea. The officials believe that Ukrainian forces, now more than 50 miles away from the city considered the “gateway to Crimea,” won’t be able to get through defensive lines a few miles away from the city.

While the fact that early assessments were overoptimistic may cause some finger-pointing in Washington, Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, tells the Post that the counteroffensive is unfolding as he had predicted. It’s “long, bloody and slow, and it’s a very, very difficult fight,” he says. Nico Lange, a Ukraine expert at the Munich Security Conference, tells the Economist that over the last two weeks, things have “been gradually tipping in Ukraine’s favor,” with forces slowly making progress and longer-range munitions taking out Russian command centers. “The Russians are in pretty rough shape,” Milley says. “They’ve suffered a huge amount of casualties. Their morale is not great.”

The biggest obstacle for Ukrainian forces has been what the Economist calls “some of the most heavily mined areas in the history of warfare,” with up to five mines per square meter in some areas. Ukraine is short on mine-clearing equipment and soldiers clearing mines have been taking heavy casualties. Analysts say, however, that if Ukraine can get through the first Russian defensive line, the second and third lines may turn out to be brittle. The defense ministers of the Netherlands and Denmark said Friday that the US has given its approval to deliver long-awaited F-16s to Ukraine, the AP reports, though they won’t be delivered in time to be used in this year’s offensive.

So has the ‘counteroffensive’ been a dud?

According to the Washington Post, the US intelligence community has assessed that Ukraine’s Spring counteroffensive will fail to meet its core objectives. Western officials said their war games had predicted massive Ukrainian losses, but that Kyiv would remain committed to the operations and gain the upper hand on the battlefield.

The Post reports it spoke with Western and Ukrainian officials familiar with the intelligence assessment. Washington declined to offer an official statement on the bleak outlook for Ukrainian forces.

Washington hoped Kyiv’s forces would recapture Melitopol, a Ukrainian city near the Sea of Azov in the country’s south. However, Moscow has several layers of defenses and minefields defending the town.

Western countries helped Kyiv conduct simulations of the counteroffensive, which began in early June, for several months prior to the operations. The US and UK concluded that Ukrainian forces would suffer massive losses but believed Kyiv would ignore the losses and maintain the offensive at full scale.

…

The lack of success by Ukrainian forces is creating political issues for the White House. The Post reports that some Republicans are turning against approving Joe Biden’s proposed $24 billion aid package to Ukraine after they learned of the grim intelligence assessment.

(antiwar.com)

Even doe hard warmongers are seeing the fruitless endeavor of this war….

Rep. Andy Harris (R-MD), a co-chair of the congressional Ukraine Caucus, said this week that he’s not sure if the Ukraine war is “winnable” and called for the US to pressure Ukrainian President Volodymyr Zelensky to pursue peace talks.

Harris is also a member of the Freedom Caucus, which has many members who have opposed US support for Ukraine. But Harris has been a staunch supporter of the proxy war against Russia throughout the conflict.

“Is this more a stalemate? Should we be realistic about it? I think we probably should,” Harris said at a town hall on Tuesday night, according to POLITICO. Discussing the Ukrainian counteroffensive, Harris said, “I’ll be blunt, it’s failed.”

“I’m not sure it’s winnable anymore,” Harris added. His comments are a sign that the new $24 billion in spending on the Ukraine war that the White House has asked Congress to approve won’t receive as much support as previous packages.

(antiwar.com)

Even some NATO officials are seeing the inevitable close of this conflict…..

A NATO official has suggested Ukraine could cede some territory to Russia in exchange for joining the Western military alliance.

The comments were made on Tuesday by Stian Jenssen, chief of staff for NATO Secretary-General Jens Stoltenberg, and reported by the Norwegian newspaper VG. “I think that a solution could be for Ukraine to give up territory, and get NATO membership in return,” he said, adding that it should be up to Ukraine when and on what terms to negotiate.

Jenssen said the issue of Ukraine’s status after the war is being discussed within the alliance and that some countries have raised the possibility of Kyiv ceding some territory. The comments come as the Ukrainian counteroffensive is stalling, and Western officials are admitting it’s very unlikely to succeed.

The comments mark the first time that a high-level NATO official suggested Ukraine might have to cede territory to Russia. The US and NATO have backed Ukraine’s demands for peace, which include Russia withdrawing from all the territory it has captured since invading, as well as giving up Crimea, which has been Russian-controlled since 2014.

(antiwar.com)

To push back on the comment above….the Supreme leader of NATO had to keep the home fires burning by stating…..

NATO Secretary-General Jens Stoltenberg on Thursday said that only Ukraine can decide when to enter peace talks to end the war with Russia and vowed the alliance’s support for an open-ended conflict.

“It is the Ukrainians, and only the Ukrainians, who can decide when there are conditions in place for negotiations and who can decide at the negotiating table what is an acceptable solution,” Stoltenberg said.

His comments came after his chief of staff, Stian Jenssen, drew a backlash for suggesting on Tuesday that Ukraine could cede territory to Russia in exchange for NATO membership, an idea both Ukrainian and Russian officials scoffed at. Jenssen appeared to walk back his comments on Wednesday, saying he made a “mistake.”

Stoltenberg said that the only path to a settlement is “to support Ukraine militarily. If you want a lasting, just peace, then military support for Ukraine is the way to get there. There is no doubt about that.” The NATO chief has made similar comments throughout the war and previously said sending more weapons is the quickest path toward peace.

(antiwar.com)

“If you want a lasting, just peace, then military support for Ukraine is the way to get there”…..that is like saying the only way to preserve virginity is through fornicating.

Enough already!

I Read, I Write, You Know

“lego ergo scribo”