A new Pledge of Allegiance

in writing •  8 months ago

I pledge allegiance
to the Constitution of
the United States of America
and to the Republic
for which it frames,
one Nation,
striving for
unity,
liberty,
and justice for all.















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One thing to consider is that the constitution was never intended to be a "done deal" to always be respected without question. It's a living document, intended to change with the times as what makes sense in 1787 doesn't necessarily apply in 2017.

While some of the concepts are timeless... others have to be modified to preserve their intent in accordance with advancing times. And it's our part as lawmakers, voters, and citizens to decide and define what those changes should be as we go.

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I never implied otherwise. Thank you for commenting.

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I disagree. That's what the amendment process is for. The text itself establishes clear federal rules. They're not open for unlimited interpretation by the federal judiciary. The process for changing the Constitution is outlined very clearly in the Constitution itself. Insofar as it can be changed by referendum, yes, it is a living document. But that is as far as it is alive. Anything else is an attempt to impute construction that isn't there, generally with the aim to expand federal power.

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I agree that the process is via amending, however it just seems that most who cling to this amendment or that as though they were directives handed down from god on high have ZERO interested in even considering alteration of them. Via amending, or otherwise.

2A for example. Personally, I love my guns... however I also feel that some things firearm related are waaaay over the top. Like say, hand grenades. In the absolute literal interpretation, 2a protects my right to buy/build/own a hand grenade or 40. "Arms" is very non specific. However... I'm pretty sure neither you nor I would want such things to be common-place in any ole gun shop just by showing ID to prove you're over 18.

But... we have to be able to have that conversation without just slamming the constitution down on the table with a "so it is written, so it shall ever be" sense of inflexibility.

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That's where I strongly disagree. Federal law is an instrument of statutory construction. It doesn't rely on common law or past tradition or custom in its construction, and in point of fact, there is no federal common law.

This is the danger of what you're talking about. It assumes that you can propose legislation based on general interpretation of federal law, and this is patently an incorrect reading of the Constitution.

Take your 2A example. You know where you go to find that answer, as to what arms means? Common law of the States from which that question arises.

The Amendments to the Constitution, and the Constitution itself, are, and should be considered, as written in stone. The long decline of dual sovereignty and individual rights is in large part due to this view that the Constitution isn't really what it says it is, but what we (legislators and judges) say it is. You can thank Bentham and former Chief Justice Holmes for that.

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So you don't believe there should be any interstate definition of what constitutes a reasonable "arm" for individuals to own then? That it's ok for me to live in say Missouri (I do) and be able to buy an RPG but for my neighbor down the street who happens to be across state lines into Illinois it's illegal?

While I think some things should and are supposed to be very state by state, I surely believe others need to be addressed more broadly. Lets use an even more extreme example: no state should be able to legalize an individual owning nuclear weapons by changing their common law definition of an "arm". Period. The very concept of it would be absurd. However... under 2a... it's an "arm" if, as you say, they define it so. As such, one state could get a wild hair up their ass and make nukes legal... even though doing so jeopardizes the well being and safety of all of the states near them, if not the nation as a whole by exposing us to foreign response and violating several treaties on nuclear arms we've entered into.

This is where the federal government has a duty and obligation. To prevent the actions of one state from impacting that residents of another. The only realistic alternative would be state to state border crossings and random searches/customs/etc. Which no one wants.

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The fact that legalizing nukes in one state would violate a federal treaty would render that kind of legislation void, so that's a moot point. As for the RPG question, it does, and by construction must, rely on state law. This is the construction of the Constitution. Trying to legally interpret your way out of that corner violates the balance of power among the three branches. Only the legislature can make law. In cases where a clarification or explanation of terms or passages in law are required, the Supreme Court must interpret it in light of state law. The Judiciary Act of 1789, Sec. 34 declares this to be the case.

The other thing to keep in mind is that the Second Amendment is a specific enumeration of those rights pre-existing the adoption of the Constitution, as discussed in the Tenth Amendment. Ergo, the federal government has no authority to impose restrictions or sanctions on the arms held by individuals. Moreover, given that the Second Amendment was established specifically to prevent the federal government from limiting the arming of militias of the several states, the federal government is necessarily restricted from interfering in the individuals of the States from arming themselves accordingly. Can you argue that an RPG is not a useful and tactically important weapon for military engagements? I know I can't.

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Also, Thurgood Marshall's lecture was a pretty solid contributor to the idea that the constitution should be applied through interpretation of the current age when relevant. If you're interested in such subjects, worth checking out.

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Thurgood Marshall was also a student of O.W. Holmes philosophy that the law is whatever the judge says it is. He's probably the most activist judge in the history of American jurisprudence. Quoting him is about the worst way to make your case that the Constitution is a living document because it invalidates any of the checks on the power of the judiciary in the Constitution. He made the judiciary stronger than the legislature by declaring that it had the power to declare what the law was, regardless of what Congress passed.

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I have to agree with @anarcho-andrei . The more we allow the federal legislature and judicial officials to put their own spin on the firm text of the Constitution, the more they will continue to erode those basic rights until there is nothing left. At which point, the founders of this country were pretty clear on how they felt about that as well.