Appeal to authority, forefathers logical fallacy?

[drunkencowboy]

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Does the nation of America have to constantly and consistantly debate the intentions and definitions provided by the "founding fathers" to decide its current course and future prospects? Is it not a logical fallacy to argue the long-dead points of long-dead peoples that have no modern context? Are we indeed bound to the continuous recycling of interpreting old words and connotations, or can we actually reinvent new meanings for these old decrees?

Seeds: This applies to digital search and seizure, high crimes and misdemeanors, rights to congregate, and so on.

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Why dont you give us an example of a topic that you think cannot be solved using the logic of our founding fathers?

Or - just explain why you think the examples you gave (search and seizure, etc.) are being dealt with incorrectly and how it comes down to miscalculations in our founding fathers logic...

"logical fallacy" - can you point one illogical statement in our Constitution?

Thanks.

[ALawPoker]

I think it's important to differentiate the gray areas of the founding fathers' intentions, and what is actually written in stone (or at least, stated pretty clearly). There is a mechanism in place for amending the Constitution. It's OK to think something like "the founding fathers couldn't foresee how powerful and dangerous modern day weapons can be, so the 2nd amendment shouldn't be taken so literally." But until it's actually changed, I feel like you have to take it for what it is. The whole point of laws, as I see it, is to provide a clear set of rules. Even if arbitrary, I think most would agree that it's better they be clear than open for a lot of interpretation.

So personally I have no problem when people want to second guess the founding fathers (after all, they were only human). But in the instances where we (as a society today) disagree with them, I think the Constitution needs to be amended to reflect the shift in how the laws are drawn and interpreted.

[drunkencowboy]

when they said "Citizens shall have the right to bare arms", they actually werent talking about guns at all.. they meant that people have the right to wear sleaveless shirts. this is how i interpretted this...

[UpstateMatt]

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I think you need to differentiate between two types of appeals to the Founding Fathers. The first case, in which I agree with you, is when someone justifies a stance based on a personal opinion of a Founder. Ex. Jefferson hated organized religion / Franklin was a pacifist / Washington freed his slaves /etc. IN those cases, I agree with your point.

However, i think it is quite important to understand the Founders views on specific matters of the Constitution, to the degree that we believe the original intent of the Constitution is an importnat element of the structure of stable government. (You may choose to argue that original intent has no bearing on Constitutional doctrine, but that would be quite a radical view, and one that would tend to limit the entire purpose of Constitution -- to put a higher set of laws in place that cannot be adjusted by swings the popular opinion of majorities.

In this second case, I think it is very important to understand, for example, what the Founders were thinking when they authored Article I, or the 2nd amendment. If we disregard their original intent completely, we don't have a Constitution in the formal sense, we just have a bunch of words open to the various interpretations of today or tomorrow's majority. When that is the case, we don't have rights, just pure democracy.

cheers
matt

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Washington freed the slaves? lol oh yeah i forgot right after he cut down the cherry tree with a chainsaw

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Note that I didn't say "Washington freed the slaves." I said "Washington freed HIS slaves." This is certifiably true.

And, yes, it's an important fact in the discussion of whether the Founders personal opinions should count for anything. Washington was one of the few (and the only super-famous) southerners at the Constitutional Convention who freed his personal slaves (albeit in his will, upon his death and his wife's death). This fact is often brought up as a sign that Washington was morally or ethically "superior" to other Founders (mainly Jefferson) who did not ever free their personal slaves.

Next time, before you mock someone, at least bother to check the facts. It will save me time and you embaressment.

[andyfox]

It's usually not a logical fallacy because the person doing it doesn't really believe in what he's saying. He's just looking for an excuse to validate what he wants validated.

That said, the appeal to the Founders usually concerns interpreatation of the Constitution. There's no such thing as original intent. The Constitution was a compromise; there was no stenographer at the convention; and many of the Framers said different things at different times. Very early on, almost as soon as the ink proverbially dried on the document, vying parties were at each other's throat over the meaning of the Constitution; if there was "original intent" they would have agreed on it.

[ALawPoker]

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It's usually not a logical fallacy because the person doing it doesn't really believe in what he's saying. He's just looking for an excuse to validate what he wants validated.

That said, the appeal to the Founders usually concerns interpreatation of the Constitution. There's no such thing as original intent. The Constitution was a compromise; there was no stenographer at the convention; and many of the Framers said different things at different times. Very early on, almost as soon as the ink proverbially dried on the document, vying parties were at each other's throat over the meaning of the Constitution; if there was "original intent" they would have agreed on it.

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Very good post.

[UpstateMatt]

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It's usually not a logical fallacy because the person doing it doesn't really believe in what he's saying. He's just looking for an excuse to validate what he wants validated.

That said, the appeal to the Founders usually concerns interpreatation of the Constitution. There's no such thing as original intent. The Constitution was a compromise; there was no stenographer at the convention; and many of the Framers said different things at different times. Very early on, almost as soon as the ink proverbially dried on the document, vying parties were at each other's throat over the meaning of the Constitution; if there was "original intent" they would have agreed on it.

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That's certainly a reasonable argument, and it's one worth giving weight. However, I think it ignores some obviously important points:

1)There's an open debate over what the 18 century meaning of individual words meant - militia and state being two of the most important. Where is a better place to look than in the writings of those who wrote the original ink. Shouldn't their thoughts on the matter weight at least something when we are trying to define words in the Constitution?

2)To argue that the Constitution was simply a complete compromise is silly, on two counts. First, plenty of it wasn't a compromise at all: things like the primacy of Congress and various Article I powers of the legislature (both state legislature and federal) were not in doubt in 1789, but might be questioned now. Shouldn't the original understand of these be worth considering? Second, all democratic decision-making is compromise in the sense you are using it. Does that mean that the intent of Congress when they pass legislation is worthless? Normatively, i guess you could make a case. But probably not. And in reality, it's HUGELY important. The federal courts defer to it as the prime basis for determining the meaning of federal law.

None of this is an argument for reactionary orginalism. That's a silly theory, because it puts the intent of the founders above everything as the exclusive way to interpet the Constitution. But to reject them out of hand seems equally silly, no? It's simply more information about whata document means.

And this leads to the final point. As dumb as pure originalsim is, it is equally dumb to simply interpet the Constitution exclusively by contemporary standards. Doing that simply turns the Constitution - which is supposed to be higher law that can't be adjusted by temporary majorities - into a tool OF the majority. Rights are collapsed into nothing more than the standards of the majority. And then you don't have a Constitutional system, you have a pure republic. And that's not good, for those in the minority or the majority.

Good thread. Keep it up.

matt

[andyfox]

1) Maybe. I'm not quite sure, though, that what people thought at that time constituted "cruel and unusual" punishment or an "unreasonable" search and seizure should have much relevance to us today.

2) In order to get something the delegates could agree to, many parts of the Constitution were deliberately left vague. Constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and understandable. The occasional vagueness and ambiguity, then, seems intentional.

Perhaps a fine line has to be tread between elements of originalism and the so-called living Constitution. Exactly where that line is, I'm not sure. But it's clear to me that the Framers intended to focus on "essential principles . . . which ought to be accomodated [sic] to times and events." {Edmund Randolph] And that the more one looks at a jurisprudence of origianl intent, the more it seems politically motivated as a disguise for political objectives.

[LibertyP]

Original intent is crucial to the understanding of the Constitution simply because it is that is the understanding adopted by the people. To argue that such is an irrelevant consideration undermines the most basic principle of democracy

If the words of our Constitution can be twisted and contorted to fit anyone's agenda -- from negating the state’s rights provision of the 10th Amendment to hallucinating abortion rights -- it becomes an essentially meaningless document. While it is certainly legitimate to use the overall spirit of the Constitution to contemplate its proper application to unforeseen technologies or situations, clear original intent should not be vulnerable to arbitrary overrule by a handful of unelected lawyers.

If we want the Constitution to reflect an “updated” view of our principles of law and justice, we have in place a time-tested amendment process.

[andyfox]

"Original intent is crucial to the understanding of the Constitution simply because it is that is the understanding adopted by the people."

Adopted by what people? People in one state had a different understanding of what the words meant than those in another. Plus there are plenty of sections where the words is vague and/or ambiguous.

There is absolutely no evidence that the drafters of the Constitution wanted us to use their standards today. When they spoke of "cruel and unusual punishement," for example, they didn't expect that we would have the same standards in the third century after they wrote those words as they did.

The vast bulk of the Constitution is not the subject of constitutional law because it is clear and unambiguous. But the sections that not that way were written that way deliberately.

There is no such thing as clear original intent. The Framers clearly intended there be no such thing, which is why they met in secret without recording the proceedings.