Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

"Original intent": would I be the only INCD5 GOP to survive that cut?

My opponents in the June 2 GOP primary for Indiana’s 5th Congressional District (INCD5) seem to like simple things, and that includes how our courts should construe The Constitution. They want to adhere to “original intent.”

Original intent” is a legal philosophy under which judges and justices would look only to the “plain wording” of The Constitution and the “original intent” of the delegates to the 1787 Convention to determine what The Constitution means.

Previously I’ve explained why this view is bunk, but today let’s view it from a different angle. If we are to adhere to “original intent,” we adhere to it across the board. After ll, that is the beauty of “original intent”: a one-size-fits-all concept for a very complex world. 

First, three GOP candidates for seek the GOP nomination should shut up and withdraw. Nurse Beth Henderson, Kelly Mitchell and Victoria Spartz have no say. They are women. Only males had a say in 1787 - original intent can be a bitch. 

Second, any of the remaining candidates who rents a home cannot be in the field. Delegates to The Convention in 1787 were landed. They might permit the common rabble - like the men in Shays’s rebellion - to fight and die in warfare, but those men had no say in government. 

Third, any such of my opponents should cash it in and withdraw. If they persist and try to slip through, such a move could be a felony, as laws against illegal voting tend to be. The people should be ready for life’s end. Felonies usually carried the death penalty. 

Fourth, any Roman Catholics amongst my remaining opponents probably should withdraw. Indiana was not yet a State, of course, and in some States Roman Catholicism was repressed. Two delegates were “RC,” so odds would be against such of my opponents. 

Fifth - this should go without saying, but I need to point out - that means any of my opponents who is Jewish or adheres to the Islamic faith is out of the race. During debates at one of the two North Carolina ratification conventions, rights of “mohammedans” were dissed. 

Sixth, we need to eliminate issues. Favor term limits, judicial appointments with an end date, or strong defense of the “second amendment”? The Framers didn’t. The first and second positions were rejected. The Bill of Rights was not a part of The Constitution.

Whilst we are at it, advocates of “original intent” should shut up about civil rights. After all, the most evil compromise was The Constitution’s protection of slavery. And don’t say anything about the amendment process because that would negate most targets of “original intent” 

If any of my opponents for the INCD5 nomination remains after these stringent “original intent” standards, we should start to slander each other immediately and, when either of us takes office, move to prosecute the followers of the other. (See, Adams and Jefferson.)

I would be “safe” in all this. If MAGA fans want royalty, trump is not in the mix. However, I am a direct descendant of the first Governor of Massachusetts Bay Colony, John Endicott. Both sides of my family have roots in the Back Bay. 

I am Mark Small, a GOP candidate for U.S. House in Indiana’s 5th Congressional District. I am proud to be a progressive - PRO-CHOICE, pro-environment and anti-militarism - and carry on that tradition of the Grand Old Party. I approve of this blog. Hell, I wrote it.

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Comment by pogden297 on May 21, 2020 at 11:35am

Original intent is a philosophy for interpreting the Constitution that looks at the actual wording of the provision being interpreted and what was intended by the provision.  It is a way of providing judicial guidance and, more importantly, limits on judicial power.  Those who are against strict original intent can never muster any coherent argument for what they would put in its place.   They apparently are perfectly fine with unelected federal judges making up whatever laws, via judicial fiat, as they want.  (Well, as long as those policies adopted are liberal policies like abortion on demand, i.e. see Roe v. Wade.)   So the Constitution says the sky is blue?  No problem. A judge can say it is red.  To those who oppose original intent, the actual words of the Constitution and law do not matter, intent doesn't matter...the only thing that matters is what the judge wants to do...again as long as it is something that liberals like.

The examples cited are not remotely persuasive.  Most are matters never addressed by the Constitution.    The Framers left things like property restrictions on voting to the various state legislatures, and guess what?  They decided the issue in favor of their not being such restrictions.   Legislative bodies under the Constitution can set voting qualifications and they did not bar Catholics and Jewish people from voting.  Women and blacks were barred by law from voting ...but those restrictions were overridden by constitutional amendment.   

It is unfathomable why the author thinks that the very constitutional amendment process set forth in the original Constitution being used to later change a provision that time has deemed to be unwise is some how defeating of the original intent argument.  Rather, it's just the opposite.    The fact Constitution can, and has been changed via that process, supports original intent.  The number one fundamental principle of original intent is that an unfavorable constitutional provision can be changed via the very process the founders set forth in the Constitution.  We don't have to have unelected judges making those changes by judicial fiat.

Likewise, the fact that the Constitution only sets forth the framework for our government and few specific issues are chiseled into stone in that document and are instead left to legislative bodies, also supports original intent as a philosophy.   Our Founding Fathers knew that the public's views on a wide assortment of issues would change over time and legislative bodies needed to be free to make changes.  That's why they chiseled into the stone of the Constitution dictates on very few specific issues, leaving those instead to be addressed by Congress and state legislative bodies.  That those legislative bodies decided issues a certain way in 1790 and then changed the law in 1890 and again in 1990, is EXACTLY what was intended by the original Constitution.  Again, the fact that most policy choices are left to legislatures which can change the law over time supports original intent as a philosophy and undermines the author's preferences that unnelected judges have the power to make policy choices from the bench.

One wonders that after four years of Trump appointed federal judges assuming the bench that the author might want to rethink his philosophy that judges should have unchecked power to change laws depending on what they had for breakfast that morning.

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