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How do you ask what the Constitution means when its founders are dead?

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Posted: Sunday, October 7, 2012 8:13 pm | Updated: 6:02 pm, Mon Oct 8, 2012.

What were the founding fathers thinking when they drafted the U.S. Constitution?

In some cases, it’s too hard to tell because much of the 1789 document is vague, according to two law students who spoke about constitutional law Sunday afternoon at Hutchins Street Square.

The people who wrote the Constitution have been dead for about two centuries, so you can’t ask them what they meant when they wrote certain portions of the Constitution, said Courtney Martin and William Whaley, students at University of the Pacific’s McGeorge School of Law.

Some of the Constitution is easy to interpret — an obvious provision is that you have to be at least 35 years old to be president of the United States.

On the other hand, what does “cruel and unusual punishment” mean, Martin said.

That question is not addressed at all in the Constitution, so it’s up to the U.S. Supreme Court to determine what it means, Martin said.

Martin and Whaley discussed what today’s justices face when interpreting law. Here are some of the vague items that are subject to interpretation:

  • What is considered “cruel and inhuman punishment?”
  • What do the terms “equal protection” and “due process” mean?
  • Does “discrimination,” as defined in the 14th Amendment when it was adopted in 1868, mean only black people? That was the interpretation at the time, Whaley said. Women and minorities other than blacks were excluded. It wasn’t until 1971 that the Supreme Court added women as protected as much as black men.

One question that the Supreme Court hasn’t addressed is homosexuality.

Martin said that voters should decide or legislation enacted when it comes to gay marriage because it allows people a greater voice. Court decisions are sometimes made quickly without citizens knowing they’re being considered ahead of time, she said.

Nevertheless, the Supreme Court overruled state law when states enacted particular legislation, Whaley said. Here are some examples he cited:

  • One state prohibited everyone except immediate family members to live in the same house or apartment. Legislators claimed that allowing aunts, uncles or friends from moving it would cause overcrowded parking. The Supreme Court struck down the law because it individuals are allowed to enjoy their own privacy.
  • In Connecticut, married couples were barred from using contraceptives. The Supreme Court declared the law unconstitutional in 1965 because married couples have the right to privacy in their own bedroom..
  • In Texas, the legislature prohibited homosexual sodomy. In 2003, the Supreme Court struck it down because justices said it violated the right to privacy.

Martin contends that the Constitution was written to give states more power to enact laws, but since that time, the federal government has taken that power, which she says is wrong.

“I thought it was wonderful, but I was disappointed so few people came,” said Lodi resident Suga Moriwoki after the presentation ended.

Not counting the speakers or officials from the Lodi Public Library, which sponsored the two-part series on the Constitution, only 10 people showed up Sunday.

The presentation was moved to Hutchins Street Square because Sunday’s Lodi Street Faire prevented people from parking at the library, said Library Director Nancy Martinez.

“I’m surprised about the amount of interpretation (of the Constitution) that is necessary,” Woodbridge resident Fred Paulsen said.

Contact reporter Ross Farrow at rossf@lodinews.com.

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  • Mike Adams posted at 11:32 am on Wed, Oct 10, 2012.

    Mike Adams Posts: 1271

    Daniel: Sorry to hear your country thing didn't work out. You put a lot of work into it.

  • Darrell Baumbach posted at 5:40 pm on Tue, Oct 9, 2012.

    Darrell Baumbach Posts: 9403

    Ms Kennedy stated...My satirical comments were made to show

    I think she must have meant "hysterical", not "satirical"...

  • Darrell Baumbach posted at 5:16 pm on Tue, Oct 9, 2012.

    Darrell Baumbach Posts: 9403

    Thanks for the comedy Ms Kennedy... You appear to be foaming at the mouth figuratively.

    You missed my point. I was stating that the tax system needs to be changed, not exclude anyone from voting. If everyone had to pay something in tax, they have skin in the game. So if a person paid 1% in income tax because his or her wages were lower, that would be more fair. zero percent is not fair.

    My position was a starting position. Of course after healthy debate and compromise, something more fair could be implemented.

    How unfortunate that you express such hatred and bigotry against people like myself. You have preconceived ideas and think the worse case scenario.

  • Walter Chang posted at 3:59 pm on Tue, Oct 9, 2012.

    Walt Posts: 993

    "you exemplify the feigned outrage that conservatives thrive on"

    Feigning outrage is job number one for certain people around here...

    And it appears that you already know who they are.

    Tread carefully, some are "protected".

    Typically not "Mitt Baumbach" though...



  • Alex Kennedy posted at 2:39 pm on Tue, Oct 9, 2012.

    Alex Posts: 215

    Wow Mitt Baumbach, take the vote away from poor people, that takes out a large portion of the women and minority votes. Is it less racist/sexist to subtly lump them both in one block? I know this game.

  • Alex Kennedy posted at 2:37 pm on Tue, Oct 9, 2012.

    Alex Posts: 215

    JK, you exemplify the feigned  outrage that conservatives thrive on. My satirical comments were made to show the absurdity of hyper- orthodox interpretations of what is or is not constitutional based on what was written 18th century America. Simply put, only white males of means were given the right to vote and slaves were income-generating property instead of human beings with feelings, intellect and aspirations.  If our founding fathers wanted it otherwise they would have made it so. 

  • Walter Chang posted at 2:00 pm on Tue, Oct 9, 2012.

    Walt Posts: 993

    "This cannot stand unchallenged!"



  • Joanne Bobin posted at 12:49 pm on Tue, Oct 9, 2012.

    Joanne Bobin Posts: 4313

    Did you know, Mr. Kinderman, that YOU may be in the category of individuals that Mr. Baumbach thinks shouldn't be allowed to vote?

  • Joanne Bobin posted at 12:47 pm on Tue, Oct 9, 2012.

    Joanne Bobin Posts: 4313

    "If I were to exclude anyone (from voting), it would be people who pay no income tax but take benefits that the tax dollar funds."

    Really? So people who have worked all of their lives, now collect SS benefits, but pay no income tax should NOT be allowed to vote?

    Our wounded warriors who served in the military, are now disabled and collect VA disability, but pay no income tax should NOT be allowed to vote?

    The working poor, who slog off to a low paying job every day and who supplement their income with food stamps, but make so little that they pay no income tax should NOT be allowed to vote?


  • Joanne Bobin posted at 12:04 pm on Tue, Oct 9, 2012.

    Joanne Bobin Posts: 4313

    Mr. Baumbach wrote: "For example, age 35 was an elderly man 200 years ago. Mortality rates have had dramatic improvements since then."

    Good thing Mr. Baumbach was not an insurance salesman back in 1789! Those insurance rates would have been sky high.....If "35 was an elderly man," how do you explain the fact that our first three presidents died at ages 68, 91, and 83 respectively?

    I really think that movie 2016 has eaten away at your ability to think half clearly.

  • Jerome Kinderman posted at 11:09 am on Tue, Oct 9, 2012.

    Jerome R Kinderman Posts: 2255

    What, such comments as "If Darrell had his way, women and minorities would not vote and slavery would still be dandy" are acceptable about people we don't even know on this forum? While Ms. Kennedy should certainly be held in contempt and ignored, I still must insist that she back up this "comical perception" of Mr. Baumbach. There’s nothing even remotely comical about it.

    This cannot stand unchallenged!

  • Darrell Baumbach posted at 7:46 am on Tue, Oct 9, 2012.

    Darrell Baumbach Posts: 9403

    Ms Kennedy stated...If Darrell had his way, women and minorities would not vote and slavery would still be dandy...

    Actually, I believe woman are superior beings to men and that many men would be unable to cope with life if woman were not as strong as they are.

    If I had a choice and was forced to decide which sex would vote, I would exclude men from voting before women. However, in real life, I would not exclude any person based on gender or race. If I were to exclude anyone, it would be people who pay no income tax but take benefits that the tax dollar funds.

    As far as minorities, since most of my relatives still alive are Hispanic and Philippians and since I appreciate third world cultures that are considered minorities economically, I think your perception is amusing.

    I do appreciate that you expressed your comical perception of me, you are a true misguided liberal.

  • Darrell Baumbach posted at 7:34 am on Tue, Oct 9, 2012.

    Darrell Baumbach Posts: 9403

    Hummm...I am not attacking liberals, I am clarifying who and what they are. I have always felt liberals in general are compassionate caring people whose behavior many times result in many unintended consequences that harms others.

    It is why I so much appreciate your posts. You make it much more clear than I would have ever hoped for..Please continue with your posts as you are a gem and one of the best ways to demonstrate the folly of liberalism.

  • Alex Kennedy posted at 2:10 am on Tue, Oct 9, 2012.

    Alex Posts: 215

    If Darrell had his way, women and minorities would not vote and slavery would still be dandy. His grandpa was probably like Awe jeez, first they "free our property," don't they know that's bad for business? Then, they have the nerve to give  our women permission advocate for themselves. That's unconstitutional! Those treacherous Yankee liberals are destroying our country, I recon I should move to the Orient...maybe Siam.

  • Jerome Kinderman posted at 8:43 pm on Mon, Oct 8, 2012.

    Jerome R Kinderman Posts: 2255

    We were actually referred to as “The United States of America” in the Preamble to The Articles of Confederation (our operating set of laws, agreed to by Congress on November 15, 1777 then ratified on March 1, 1781 - precursor to The United States Constitution (see: http://www.usconstitution.net/articles.html)), significantly long before the Northwest Ordinance of 1787.

  • John Lucas posted at 3:00 pm on Mon, Oct 8, 2012.

    John Lucas Posts: 2726

    Darrell, When you make attacks on Liberals have you ever not resorted to outright falsehoods?

  • Joanne Bobin posted at 11:05 am on Mon, Oct 8, 2012.

    Joanne Bobin Posts: 4313

    Yeah - that's how we got into a Civil War in 1861. We the People didn't work very well - that's why the founders gave us a Supreme Court.

  • Leah Mettler posted at 5:49 am on Mon, Oct 8, 2012.

    Leah Mettler Posts: 2

    It's very easy....
    Ask "We The People" how WE mean(t) it

  • Darrell Baumbach posted at 3:41 am on Mon, Oct 8, 2012.

    Darrell Baumbach Posts: 9403

    Letter stated...Some of the Constitution is easy to interpret — an obvious provision is that you have to be at least 35 years old to be president of the United States.

    If I were on the supreme court as a judge appointed by the Obama administration, I would not think it easy to interpret this provision as obvious... no, in liberal think, the constitution can be whatever you want it to be.

    For example, age 35 was an elderly man 200 years ago. Mortality rates have had dramatic improvements since then. So, if age 35 meant that a person would have had to live 80% of their lifespan, then that same percentage should apply today. Therefore, in 2012, you must be 50 years old to be president. That provision is very clear...in liberal think.

  • daniel hutchins posted at 12:31 am on Mon, Oct 8, 2012.

    daniel hutchins Posts: 1335

    Duh is right. But I think it's spelled with the letter "u" not "a."

  • daniel hutchins posted at 12:29 am on Mon, Oct 8, 2012.

    daniel hutchins Posts: 1335

    As I posted in a letter that the commenters did not understand, 3 months ago, information can be pieced together:

    0) The people who drafted the Declaration of Independence and the Constitution are not so stupid that they allowed for huge mistakes to occur. I believe that even Benjamin Franklin was a lawyer; therefore, I can't trust him. I think he was smart enough to have full knowledge of the discrepancies.

    1) The only title which would denote a country that had a right to claim the land would be "States of America," as so-declared in the Declaration of Independence. Thus, only by the name "States of America" would our country have a legitimate claim to the land. All other titles and names are not so-entitled. This discrepancy could be corrected simply by use of the term "as amended" to apply to a new name.

    1a) Anyone with half the education of a lawyer could spot this discrepancy. Duh. So why didn't a lawyer spot it? I think they did.

    2) King George III was Arch-Treasurer of USA. Nobody had a cerebral hemorrhage over this information, and the only comment that I got was from JEROME KINDERMAN. As it states in the Preamble, the constitution is for USA of which the descendents of King George III always have been the arch-treasurer.

    2) "We the People" refers to fictions of law, not to us people. Consequently, we stand as fools in court when we think that we have constitutional rights, and our congressmen/women don't respect us for having constitutional rights either. I think that I said that the Northwest Ordinance (1787) creates fictions of law in fictitious districts.

    3) "United States" was referenced in the Northwest Ordinance (1787) , showing that it existed prior to the constitution.

  • William Dawes posted at 9:08 pm on Sun, Oct 7, 2012.

    William Dawes Posts: 113

    How do you know what they meant? Dah! you read the Federalist Paper. Plus you look at similar legal cases that took place after the Constitution was adopted.

    No, legislation would NOT be passed regarding a person's sexuality by the founders even if they were alive.



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