For example, if one were to apply the first amendment strictly, one could make a case that whilst Congress cannot make a law prohibiting the free exercise of religion, the President could by executive order. That would clearly be a crazy conclusion to draw (especially as Congress, if it tried passing a law to change that, may fall foul of the establishment clause)

The only reason I draw the distinction between my approach and a "living document" approach is that as I feel that decisions like Griswold were just plain wrong. I don't see the concept of privacy anywhere in the text. There isn't even a hint or implication of it; the SCOTUS Justices just conjured it up.

Whereas there are, for example, references to one's body (habeus corpus, or "be secure in their persons" in the fourth amendment, for example). These could constitute grounds for a right to be secure in one's body (autonomy over one's body). This right is far narrower than the "privacy right" and yet would still cover things like abortion. It wouldn't have covered the law in Griswold, but then I agree with Potter Stewart; the ban on contraception, whilst incredibly silly, was still constitutional as a matter of law.

When it comes to God, I will also admit that I'm agnostic. I don't hold anything against those who are religious so long as they don't try to impose their beliefs on others.

Precisely, I'm all about "live and let live".

The comment about those who believe God is talking to them is more of a semi-serious joke because you can never be sure what God is going to "say" to them.

Heh, yeah, I got it. It's dangerous territory and clearly there's not much one can say to distinguish hearing God (which we're told is religious) to hearing the Devil (which we're told is schizophrenia).

"I've spoken with several "literalist" Bible interpreters who have sworn up and down to me that the bible was written in English."

Heh. And how did they react when you told then Jesus was a Jew?

"I find this a bit scary, not to mention sad as the King James version is a fantastic work of literature - almost poetic."

Yep. I have a copy myself and it's actually an enjoyable read. In case you're wondering why I own a copy, because we're a Christian country (unlike the US we do have an established religion, which is precisely why the founding fathers wrote the establishment clause), we got taught all about Christianity at school when I was younger. At about age 12 they began to expand the curriculum to cover all major religions.

I actually think teaching religion in schools, so long as it's all of them, can be a great thing. It's likely to breed more tolerance in society.

I have to admit I find Scalia pretty sharp as well. And Chief Justice Roberts seems even more impressive. Though I disagree with much of their approach, the way they are able to argue it is quite well done.

I tend to lean much more towards "contextualization" as you call it. The "living document" approach. You might be talking about something different so feel free to tell me to go take a leap if that's not what you mean. I will admit I'm not a lawyer and just find this conversation quite interesting. Because I don't think this is "legislating from the bench" as Republicans typically phrase it.

It's great framing. But I believe misleading.

When it comes to God, I will also admit that I'm agnostic. I don't hold anything against those who are religious so long as they don't try to impose their beliefs on others. The comment about those who believe God is talking to them is more of a semi-serious joke because you can never be sure what God is going to "say" to them.

I've spoken with several "literalist" Bible interpreters who have sworn up and down to me that the bible was written in English. I asked them if they'd ever looked at some of the different versions of the Bible and they insisted there was only one. And it was written in English. When I said it was originally written in Hebrew they looked at me as if I were mad. I find this a bit scary, not to mention sad as the King James version is a fantastic work of literature - almost poetic.

-David

I'm much more focussed when I'm arguing a point. Incidentally my ADD is largely why I spend so much time here when I should be working. Don't tell my boss ;-).

I just think it's funny when people try to say that they're trying to interpret the meaning of a document (like the Constitution) at the time it was written.

Original Intent is a dodgy approach. I tend to go with an approach of "follow what the text actually says, unless doing so is so utterly repellant that some level of interpretation and "modernisation" is required".

So on most things I follow precisely what the text says, but things like Civil Rights (passed under the Commerce Clause even though it wasn't really commercial law), abortion (there's no privacy right, and I still believe there isn't, but to me it's clear that autonomy over one's body is an implicit right in the Bill of Rights) and gun control (the second amendment was written in the aftermath of a war against an oppressive government; it's hard to argue that the same applies today) require some "contextualisation" in a modern setting.

The reason I think this is funny is that it's just as much an interpretation as an interpretation that sees the Constitution as a document written to adapt to the times. Who is someone like Scalia to think that he can say what was originally meant by the Constitution?

Exactly. Scalia's a legal genius (seriously, his opinions read like nothing else; they are almost good enough to read purely for pleasure) but he no more knows what the founding fathers intended than he does next week's lottery numbers. Besides, arguing that "interpretation is wrong" and then using an Original Intent analysis is simply, as you say, interpretation by another name. It smacks of hypocrisy.

(Incidentally, it's rare indeed when I agree with Scalia's reasoning on a case. I may agree with his holding, but rarely the reason why. Thomas isn't much better.)

And would we really want the Constitution of the late 1700s anyways?

And that is precisely why a "modernisation" approach is the right one. I still think strict interpretation is the ideal standard, but there are times that a law written in the 18th century needs to be brought into the 21st. America is not the same as it was when it was founded. It's better in some ways, worse in others, but no matter what, it's different. Its constitution must be different too, or it becomes useless.

It reminds me of folks trying to literally interpret the bible according to what the authors "meant." As if somehow they have special insight into what they meant.

Actually, I contextualise the bible all the time (I'm not a Christian). That's why I think that the ban on homosexuality, for example, was probably a response to social factors. Not sure what they were, could be anything from trying to boost population (so encourage heterosexuality) to people dying from sexual disease combined with a presumption it was caused by homosexuality not just sex (we laboured under that misconception back in the 80s, remember?) of any kind.

I am sure, however, that God, if he exists, doesn't hate Gays.

What scares me is the whole WWJD movement. Like anyone can know what Jesus would do if he were here, as if anyone makes decisions in a vacuum. Even Jesus would surely have to see what the situation was, weigh things up, then decide.

Again, I'm in favour of modernising a book written that long ago. I'm not in favour of moving society backwards to the time the book was written. Why would anyone want to regress back to that? Society has moved on, we've progressed.

As I've always said, "I have no problem with God, just the people who think that God is talking to them."

I've no problem with people thinking God's talking to them, as long as he's telling them to love. I mean, if someone says they heard God and God told them to feed the hungry, I'd have no problem with that. If someone built a hospital because of God speaking to them, likewise, that's not a bad thing. But if someone says God tells them to hate Gays, or Jews, or Blacks, or whatever, then that's clearly wrong.

What kind of God would preach a message like that? None that I'd want anything to do with (full disclosure: I'm agnostic, so, technically, I wouldn't want anything to do with any God, but that's somewhat besides the point). Religious people tell us that God is benevolent, so it seems entirely contradictory to use God to justify hatred.

Osborne, Parker's fate doesn't surprise me. When a guy says he's a lifelong Democrat back in 2006 and switches to the Republicans just three years on, he's not a loyal guy. Republicans don't trust him not to switch back. Besides, his voting record isn't really all that conservative. He voted with Pelosi 85% of the time before his switch. Yeah, that's a real Republican right there.

The situation with someone like Rodney Alexander was very different, as he was always a conservative Democrat, and it was the selection of John Kerry, a man who makes Obama seem positively right wing by comparison, which pushed him to switch. Besides, the Republicans had the majority in both of the houses in 2004. At the moment the Democrats dominate both houses.

In a state that's usually red anyway, Griffiths' switch probably only made it easier for Brooks, as I suspect Brooks would've lost in a general election to an incumbent (and Democratic) Griffiths. Oh well. Guess he's wishing he'd listened to all the people who told him it was political suicide to switch.

Meanwhile, Parker Griffith is probably not going to make it through his primary. Behold, the teabag terror!

PS Chris, did you see this unauthorized look at the Tea Party Convention?

I just think it's funny when people try to say that they're trying to interpret the meaning of a document (like the Constitution) at the time it was written.

The reason I think this is funny is that it's just as much an interpretation as an interpretation that sees the Constitution as a document written to adapt to the times. Who is someone like Scalia to think that he can say what was originally meant by the Constitution?

And would we really want the Constitution of the late 1700s anyways?

It reminds me of folks trying to literally interpret the bible according to what the authors "meant." As if somehow they have special insight into what they meant.

As I've always said, "I have no problem with God, just the people who think that God is talking to them."

This is about all the late night legal reasoning I can muster.

-David

A word of advice though; make a snack before you start. ;-)

Michale, thanks for the tip. I've given it a try, I'll see how that works out.

-David

I use the italics and bold attributes. I makes things a lot clearer, at least IMNSHO.. :D

But use the 'greater than' and 'less than' symbols instead of the [ ]...

IE 'greater than' I 'less than' for italics instead of [I] etc etc etc..

Michale.....

I should have clarified..

If the choices are passing DunselCare AKA CrapCare and doing nothing, then the best choice for the country is doing nothing.

Reform is needed, I don't argue with that, but the Democrats approach to it is over-broad and overly expansive.

Even the Democrats don't think the Senate Bill is any good and yet they're still insisting it's the starting point. Hence, as I say, why I think the summit will be nothing more than an Obama sales pitch to the American people.

That was my point exactly..

Democrats couldn't pass this bill, even with a so-called SUPER-Majority.

Why on earth could this un-passable and utter failure of a bill be construed as a good starting point?

Like I said above. If Obama and Democrats are serious about a bi-partisan approach, the ONLY logical solution is to start over.

Michale.....
1000% in agreement.

By far...

"I kind of agree that it seems to be a no-win situation for Republicans, because they see any political victory for Obama on HCR as a "lose" for them. Instead of a "win" for the American people -- another point Obama keeps making."

I'd hate for anyone to think I actually agree with that stance ;-)

Hey! Much as I like Michale, I'm not he.

To address your point, I don't see it being anything more than political theatre, which is why I see it as a no-win for the Republicans. If, however, it's about a truly bipartisan approach, that'll be good for both parties.

Chris,

I was comparing it to the House Bill (let's be fair here; that's the one that the Demorats would pass if they could). Not seen the CBO figures for the Senate Bill, but if your figures are right, and I accept they probably are, then that is still no reason to ignore Tort reform entirely.

My problem with the way the Senate Bill approaches both Tort reform and interstate trade of insurance is that the scheme are, as far as I know, entirely voluntary for the states to choose to enter into. That's really no different to what's currently in place; all it does is incentivize more states to re-consider policies that they've already rejected before.

I kind of agree that it seems to be a no-win situation for Republicans, because they see any political victory for Obama on HCR as a "lose" for them. Instead of a "win" for the American people -- another point Obama keeps making.

Actually Chris, I disagree with you. I think if HCR passes with the Republican Party on board, that's a political victory for the GOP, not Obama. What would be a a "lose" is if the summit is just posturing (which I think it is) and Obama passes HCR through reconciliation. I suspect the Democrats are just looking for a justification for using reconciliation, so it looks less "shady"

Yes, I know the GOP used it plenty of times, but it never got the same level of coverage this is getting. A lot of people who don't understand it think it's some sort of "cheat" (it isn't), so if Obama can say "Look, they forced us to do it because they're obstructionist for the sake of it" then it's a win for him.

Michale,

Not sure passing nothing IS the best option for the country. Passing what's on the table at the moment, however, the Democratic proposal for reform? That's what's bad for the country. Reform is needed, I don't argue with that, but the Democrats approach to it is over-broad and overly expansive.

It's actually worse than you think. The House Bill, which isn't even on the table at the moment as it won't pass the Senate, couldn't pass the Senate with the Supermajority. But the Senate Bill, which is where the Democrats think the summit negotiations should begin, can't even pass in the House, where the Democrats STILL hold enough votes to pass it.

Even the Democrats don't think the Senate Bill is any good and yet they're still insisting it's the starting point. Hence, as I say, why I think the summit will be nothing more than an Obama sales pitch to the American people.

It's not about bipartisanship. Obama hasn't wanted it, and never wanted it.

David -

:-)

Tell me about it!!

I was freaking out, thinking that David had addressed my post even before I had written it!!!

ARRGGGHHHH!!!! GET OUT OF MY HEAD!!!!!

:D hehehehehehehe

Michale.....

Passing nothing may be the worst option for Democrats, but it's the BEST option for the country..

Obama also stated that he's not going to just "start over" on the whole process -- that what has already been accomplished by the House and Senate is going to be the starting point. This is good, because of where we currently are, legislatively.

This is NOT good..

Why start with a failed plan??

Think about it.. The current plan is so fraked up, it couldn't even pass with a Democrat SUPER-Majority. Democrats had the lock on EVERY aspect of government and they could not pass CrapCare.

And THAT is the place to start?? Seriously??

I don't mean to sound rude or condescending but it seems to me that making CrapCare the STARTING point is ending negotiations before they even start.

If Obama and the Democrats are REALLY serious about a TRUE bi-partisan negotiation, then the ONLY thing that makes sense is to scrap it all and start from square one.

Anything less is just political theater..

Michale.....

Watch those names, there's a new commenter in town...

:-)

Moderate -

OK, so tort reform saving $54b over ten years is $5.4b/yr. Heath care in the US is a $2.3 trillion a year industry. So the savings will be around one-forth of one percent.

I had earlier heard the CBO pegged it at perhaps 2 percent.

Either way, while any savings is good, this kind of proves Obama's point about it not being enough. The Senate bill will trim $130b in the first ten years, and over $1 trillion the second ten years. Which, again, is what Obama is speaking when he says "if I'm told that that is only a fraction of the problem and that is not the biggest driver of health care costs, then I'm also going to insist, okay, let's look at that as one aspect of it, but what else are we willing to do?"

Obama's never been completely against tort reform, there's even a pilot tort reform program already IN the Senate bill. There's a lot of pilot programs, to see what saves money in the long run.

I kind of agree that it seems to be a no-win situation for Republicans, because they see any political victory for Obama on HCR as a "lose" for them. Instead of a "win" for the American people -- another point Obama keeps making.

-CW

Obama might also surprise. What if the summit were really a chance to actually work on healthcare reform?

Without all the political theater. Now if he could convince both Republicans and Democrats to actually work on this, for the good of the country, that would be the true masterstroke.

I think it's odd that you see this as a "no win" for Republicans, Michale. Why? Because they can't continue obstructing? Because they might have to actually do what they say they've wanted to do and sit down at the table and work on this?

I'm really not sure I understand. Unless you think working together is "losing".

Imagine if the parties could actually work together and put country first - instead of all the back and forth garbage. Isn't that what just about everyone wants?

Maybe it can be more than political theater. That's my true hope.

-David

(In case you think I'm making that up, http://www.washingtonpost.com/wp-dyn/content/article/2009/10/09/AR2009100904271.html, and I actually have the original CBO report to hand too)

To put that into context, the House Bill, the one that was proposed to be the vastly superior one, saved only $30 billion according to the CBO. As Obama himself said, the CBO is nonpartisan and he values their input in the process.

As far as I know the Republicans have already said they will show up, or at the very least hinted at it. I think they know it'd be worse not to show up, because that makes the "obstructionist" case for the Democrats easier.

(They know full well Obama would do just what you suggested he should, have the summit anyway with the empty chairs. Quite rightly too.)

Having said that, however, I fear this'll be yet another repeat of Obama's speech at the GOP retreat. It feels like a no-lose situation for the Democrats and a no-win one for the Republicans, but maybe I'm just being pessimistic.

With that recent report from the CBO to back up their argument they're in a better position than they were a week ago, but I just suspect Obama's too clever not to have a plan in mind on how to deal with the Republicans, and one thing he is, no matter what else you say, is a great performer in front of the cameras. He's a sensational orator, so this will be his arena.

For me this summit won't have any impact on the legislation. Whether it now passes or not entirely depends on the leadership skills of Obama. If, as you say, he can convince both the House and the Senate that he has their back, they can pass this through reconciliation (most of it, anyway) without any Republican support whatsoever. The summit, for me, is about November.

And like you, I think they have nothing to lose, and everything to gain. Credit where it's due, this is yet another political masterstroke by Obama during this second year (the first being the GOP retreat Q & A).

Why it almost looks like the Democrats are going on offense. And it puts Republicans in a bit of a bind, don't show and guess what you look like?

And I can almost guarantee you that they don't want to show. They'd rather say to the cameras "We want to work together, but they don't invite us to the table" but for the past year they did anything but.

So call them out!

This could be good on TV.

I heard one of the Republican reps on NPR today - forget who it was - and their "new" proposal is the same old proposal, privatize Medicare. Their pitch works something like this: scare people into thinking Medicare is the reason for the deficit and make the argument that we have to privatize it - of course grandfathering in the people already on Medicare so they won't fight against it.

Makes me laugh when I remember the Tea Partier with the sign that said "Keep your government hands off my Medicare!"

Just amazing how folks can be so turned around by good propaganda.

Anyways, Obama ought to know what to expect. I'm sure there will also be a lot of crying by the usual crowd that the process is somehow unfair.

But this is a good move. Because Republicans say that they want to work with Democrats, but for the past year they've done anything but. And this is a chance to bring this out into the open.

If they actually meant what they said, then they should be excited about this opportunity. We'll see.

-David