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Ask any lawyer how he/she interprets any ambiguity in a law. He/she will say that the language in the applicable bill and statute is the first thing you look at, but, if there are any ambiguity and question of interpretation, you must look at the legislative history (committee reports, floor debates, etc.) and prior case interpretations.
In the case of the U.S. Supreme Court, the liberal justices (Brennan's court) created the doctrine of the "Living Constitution". This means that the Constitution is an evolving thing (like a spirit), and instead of looking at legislative history, or the intent of the framers of the Constitution, we look to the nine priests in black robes that consult with the oracles, and, in their infinite wisdom, announce to the rest of us the current state of the Constitution's evolution. Usually this has benefitted the liberals and has resulted in some good outcomes (civil rights, etc.), but, it has been taken too far in some cases (like murderers being set free because of some Miranda warning technicality, etc. -- try to find Miranda warnings in the Constitution). Also, if the majority of justices are conservatives, the Constitution may just happen to evolve in a conservative direction. (The current conservative justices on the Supreme Court have shown a lot of restraint - they allowed Obamacare to become the law, and have not overturned Roe v. Wade .)
http://en.wikipedia.org/wiki/Living_Constitution
Even the very liberal Supreme Court Justice Brennan had this to say in in a 1957 Supreme Court case, Roth v. United States, 354 U.S. 476 (1957):
In Roth, the primary constitutional question is whether the federal obscenity statute violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code invade the freedoms of speech and press as they may be incorporated in the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.
....
The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.
In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance...
The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:
"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs."
All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:
". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."
We hold that obscenity is not within the area of constitutionally protected speech or press.
(End of Quote)
In fact, even today, "obscenity" is not protected by the First Amendment. However, very few things constitute "obscenity" today - it has to be extremely gross and repugnant to be considered "obscenity".
http://www.firstamendmentcenter.org/...aphy-obscenity
Women are meant to be loved, not to be understood.
- Oscar Wilde





^^^ was Brennan the SC Justice who, when unable to set forth a clear definition of obscenity, simply said "I know it when I see it" ?





^^^ LOL.
In explaining why the movie "The Lovers" was not obscene under the Roth test, and therefore was protected speech that could not be censored, Justice Potter Stewart wrote:
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."
— Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.
The expression became one of the most famous phrases in the entire history of the Supreme Court.
http://en.wikipedia.org/wiki/I_know_it_when_I_see_it
Women are meant to be loved, not to be understood.
- Oscar Wilde



I agree. But that's not interpreting it literally. Literal interpretation and historical critical are two different and conflicting hermeneutics.
No it doesn't mean that and they've never advocated that. What it does mean is that when a statute is ambiguous as a result of changing circumstance, if the intent of the statute is clear then it can be applied this new circumstances. Which is what you are advocating for a paragraph earlier in this post. FOXNews is propaganda Jack.
Easy. The constitution prohibits people being compelled to testify against themselves and requires them to be secure in their persons. That statutes and process that existed prior to Miranda often resulted in people being compelled to testify against themselves and didn't offer security in their persons, hence they were unconstitutional and different processes were needed. The court offered the Miranda warning as an example process that would pass constitutional muster.
He wasn't interpreting it literally, you were arguing that a literal interpretation wouldn't ban obscenity. Your evidence is tangential to your point.





You start with the literal language of a bill or statute, but it's not hard to find ambiguities. Words have limitations. To quote former President Clinton: "...It depends on what the meaning of the word 'is' is. "
This is specially true with regards to the U.S. Constitution which is written so broadly that it cannot be taken it too literally. Taken literally, I can create a new religion that allows me to rape, murder and commit acts of terrorism and I could demand my rights to practice my religion. Taken literally, freedom of speech would allow me to yell "fire!" in a crowded nightclub (causing hundreds of people to die), to tell your father that your mother is unfaithful (a defamation, if untrue), to share porn with your 5-year old sister, etc.
To resolve ambiguities in the law there are a number of "rules on construction," that lawyers and judges use, but usually, you try to discern the intent of the drafters of the law. You don't treat the law like it has a spirit and it is a mythical being that evolves on its very own - unless you are a liberal justice on the U.S. Supreme Court. If situations change or a law become abhorrent, you either repeal the law or you amend it.
With regards to your comment, "Conservative and liberal justices want to modernize laws to apply to new situations." There is a difference between extending the law to apply to new situations (all laws are capable of doing that) versus the "living Constitution" doctrine which does more than that, it actually gives life to the Constitution so that it evolves on its own.
At one time the Constitution did not protect women, racial minorities, gays and lesbians, etc., nor did it protect pornography, etc. These people and things existed back then, as much as they exist today (they did not just pop out of nowhere in recent times). Old Supreme Court opinions read the Constitution (using the normal legislative intent methods of interpretation) as allowing many forms of abhorrent discrimination and persecutions. According to the legal scholars on the Supreme Court, the Constitution did not prohibit slavery, separating blacks from whites, jailing homosexuals, locking up people of Japanese descent, treating women as inferiors, etc. The cure for the bigotry of the past were new amendments to the Constitution. The 13th amendment prohibited slavery (which was Constitutional until then); the 15th amendment gave blacks the right to vote (it was Constitutional until then to deprive them of this), the 19th amendment gave women the right to vote (it was Constitutional until then to deprive them of this); etc.
When the "living Constitution" justices/priests came to the Supreme Court, they did not need amendments anymore because they used magic - the Constitution "evolves" on its own. They would say that, these old abhorrent Supreme Court decisions reflected a time when the Constitution was in its primitive stages of "evolution". They disregarded legislative intent and prior cases, because - instead, they look deep into the oracle and discover a new Constitution that had evolved on its own! Then, these "living Constitution" justices/priests write new opinions that reflected the "evolved" mythical spirit of the Constitution.
But, the liberals are now afraid that this trick will back-fire! With a conservative majority, the conservative justices could also look at the oracle and see a vision of another evolution - humans in fetus form could become a protected class! They were once held in low status and discriminated against (Roe v. Wade), but, like other discriminated classes, their time may come. The "living Constitution" can one day evolve to recognize their protection! This thought makes the liberals wake up sweating in the middle of the night! But, it is a nightmare they created. The nine justices/priests could see anything in their oracle/crystal ball, and we would have to accept that what they see is our "evolved" Constitution. If the majority of the justices (5 justices) do not reflect your own political orientation, this is a very scary thought.
You don't need to listen to FOXNews, any basic Constitutional law book will explain the conflict and difference between the "originalists" and the "living Constitution" justices.
The Bill of Rights of the Constitution prohibits the government from depriving citizens of their rights, but, it does not mandate an educational program to turn every criminal suspect into a scholar of Constitutional law. I actually agree that Miranda warnings is a good idea and that criminal suspects should be advised of their basic civil rights, but I don't see that written in the Constitution, no matter how hard I try with a magnifying glass. A new federal law requiring Miranda warning would have been more suitable. Just because a new law is a good idea should not give Supreme Court justices the right to create the new law themselves, and proclaim that they got it from the oracle of the Constitution. Also, last I checked, basic Constitutional rights are taught in elementary schools and high schools, which are mandatory education. If someone is cutting school to rob or rape people, they deserve to be ignorant about their Constitutional rights. - Just my opinion.
Women are meant to be loved, not to be understood.
- Oscar Wilde
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