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In Constitutional law there are several types of arguments in which lawyers utilize to persuade the court. The focus of this comment will consider one particular argument frequently used in constitutional law. That is the “intent of the framers” of the constitution. I argue that if the intent of the framers were actually considered or applied in Brown v. Board of Education then we would still have the “separate but equal doctrine” which would allow racial discrimination in our school systems today. In Brown v. Board of Education, Brown and other students similarly situated were denied to public schools that white students could attend. Several cases were handled along with Brown’s case and all were challenging laws, which either required or permitted the “separate but equal doctrine.” The facts in Brown and the other related cases reveal that African American students were schooled in rotting wood classes, with one teacher to 47 students. Meanwhile white students were schooled in brick and stucco classes with one teacher to 28 students. The Court found that, “Segregation cannot be resolved by the framers intent. The historical sources of the 14th amendment at best are inconclusive, and enormous changes in the nature of education made history of little use in resolving this issue” Brown v. Board of Education, 347 U.S. 483, 1954
The court uniquely stated that “segregation” couldn’t be resolved by the framers intent. This is interesting because in Constitutional law we count so much on the “framers intent”, this court suggests that it is just not appropriate in this situation. I agree that it is not appropriate in this situation specifically because George Washington, James Madison, and John Ruteluge were framers of the constitution, and slave owners. What is troublesome is a court that picks and chooses whether the framers intent argument will be used. My point is furthered in Brown when they state
“we cannot turn back the clock to 1868 when the 14th amendment was adopted or even when Plessy v. Ferguson was written, so we must consider public education in light of its full development and its present place in American life throughout the nation” Brown v. Board of Education, 347 U.S. 483, 1954
I feel we should bear in mind that the intent of the framers, may have never been for the best intentions of all people. This court made it clear that in the situation of education, the intent of the framers cannot be considered in light of today. I would argue that the court could have addressed all areas of segregation, not just education. It is true that following the Brown decision other area of segregation were found impermissible, but the court could have said it applied to other areas in the first place. The “framers intent” is considered in light of the historical circumstances in their day, but that does not mean that their intent was ever the right way. If the court in Brown would have considered the “framers intent” they may have had no choice but to rule against Brown. In conclusion, the “framers intent” should not be applied in some cases and not in others. The framers intent should not be used at all. First, because no one can without a doubt, ever know what the framers had in mind. Theorists can only examine documents, and try to interpret words. Even if George Washington wrote specifically in a document labeled “my intentions,” one could still only speculate. This is because times change, meanings change, language is used differently, and old George is not here to specifically explain what he or any of the others had in mind for future generations of the Constitution. That and the fact that he may have never been able to fully anticipate where, or how this country would develop. Second, when the Brown court determined that the “framers intent” could not be applied in the realm of education, they should have considered other areas. When you have unknown intentions of framers who owned slaves, at the very least we should conclude, their frame of mind was never consistent with today’s politically correct views. Comment By Trina Stephens
Politically corrected near sighted views see not the preamble for what it is
We must never overlook the view the preamble of the US Constitution provides. It includes the Framer's intentions: "WE the prople in order to form a more perfect union, to establish justice, to ensure domestic tranquility, to provide for the common defense, to promote the general welfare, and to secure the(se) blessings of liberty to ourselves and our posterity..."
The republic began by adding ingredients for the admixture of perfectively forming a union. Present day posterity is but a part of that progress. We all must continue with establishing justice, ensuring tranquility, providing a common heart, and promoting well-being so tomorow's posterity can feel liberty secured to themsleves; otherwise, unprincipled politics will secure more fear and/or uncertainty for you and your posterity.
Please, turn the page, the common law tradition has been used for legal debates debasing the constitution for too long; its time to read the preamble and heed its dictum.
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The preamble of a constitution
The preamble of a constitution serves a most important purpose. They introduce and explain just that: the purpose of a constitution.
The derogation of a constitution's preamble subjects the body of a constitution to interpretation/judicial distretion; which panders to common law.
Geary Slapper and David Kelly define common law as "...case centered and hence judge centered, allowing scope for..." judicial discretion; but a preamble must be used to determine legislative intent and limit the excersise of judical discretion if the purpose of the constitution is to serve its republic.ledge
In regard to the statement in the "Types of Constitution" section of the Constitutional law article -- is it an error or merely a colloquialism to state that countries such as the UK have an "unwritten constitution"? Anyone with knowledge in there area is welcomed to comment. Thank you! --Dpr (talk) 15:13, 2 January 2008 (UTC)Any "Unwritten Constitution" in any "Government", is a set standard without any boundaries from any "Framers"; Capturing a reality of simply being unlimited in power of authority, & therefore not liable or restricted in any way; or by any other "Government or Law". For example: U.S. "Federal Reserve System", is set up by a secret entity that has the same power as being its own "State"; To protect its own interest & is therefore "Unlimited" in power. (The same as an "Unwritten Constitution".)As long as the "Federal Reserve System", exists as its own state, it remains just the same as if it were an "Unwritten Constitution".