[QUOTE]Originally posted by Timber Loftis:
There has been no instance where this has been found to be indicative of a difference in the Amendments. All parts of the Constitution prohibit the action of government as a whole. You're trying to find meaning in the fact that some parts of the constitution are written in the active voice and some are written in the passive voice. While active voice is usually sylistically better, and while it is true that lawyers talk in the passive voice all too often (as this paragraph indicates), you nevertheless cite a distinction without a difference. It is preposterous to suggest that one could argue before the Supreme Court, "Hey, this Congress shall make no law, and we're not congress, we're the NSA, part of the executive branch, so we can write regulations to limit freedom of speech and religion." Likewise, the converse is equally silly.
I agree there has never been an intreptation of the Constitution that shows any differance. The examples & logic you stated, is what I beleive that the Founding Father intended, but it's not what they wrote.
I think the current position on the 1st amendment, was their intended position, supported by the Federalist papers and other writings of the F.F.
I don't know if this argument is circular or what. I think you are saying that the fact that because strict constructionalism and loose constructionalism (and I think I know what you mean by those) come out the same way regarding this amendment, that alone does not *disprove* the existence of strict constructionalism. Fair enough. I'm simply stating that if you are having to say "it should have said..." or "what they meant was..." then you are leaving strict constructionalism-land and entering loose constructionalism-land.
Now you see the paradox, us "strick constructionalist" are in, a typo can really mess up our day
It's the old choaking on a nat, and swallowing a camel.
Furthermore, the Court really is limited when interpreting laws. Not to be to Cliffs NOtes about the law, I point out that the general order of importance of factors when interpreting a law is:
1. Plain words of the statute.
2. What the legislature said about the statute.
3. Other things such as public policy and common law jurisprudence.
See what I mean? In our gov'l system, the legis. makes the law.
As it should be, but not always the case ie: 2000 Florida election, I remember hearing the State rep that wrote the law say something completely different then what the Florida Supreme Court ruled, as did the vast majority of the reps that passed the law. The U.S. Supreme Court overuled, and demanded the Florida Supreme Court give an account of why they deviated from the writen law.
I won't get into agencies (executive-made law) here, as that is a different topic, and would require lots and lots of explanation. If you have a rankle with that as well, let me know and I'll point you to some good books.
Let's not go there, I think it's a necessary EVIL
[ 10-24-2002, 07:46 PM: Message edited by: John D Harris ]