The Art of Constitutional Interpretation

[MagisterCultuum]

A constitution needs to be interpreted very strictly.

It should also be openly and honestly amended or entirely replaced with far greater frequency than our constitution has been.



I'm not actually a big fan of the current document. It improved some small areas, but overall is worse than the Articles of Confederation. I would prefer the previous constitution plus the bill of rights, as would most Anti-Federalists I'm sure.

 

[GhostWriter16]

Ghostwriter, can you show me where the original intent was for the Constitution to be interpreted literally and strictly?

Also consider that it is just not just liberals that utilize a flexible reading of the Constitution when it leads to the targeted result.

The tenth amendment makes it pretty clear.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The only thing that isn't clear here is what goes to the states, and what goes to the people. Conceivably the stuff that would go to the people would be the same things covered by the ninth amendment, and this would be an example of the Supreme Court actually working correctly, to INTERPRET the constitution where it isn't clear, not to ignore things that are pretty clear.

A constitution needs to be interpreted very strictly.

It should also be openly and honestly amended or entirely replaced with far greater frequency than our constitution has been.



I'm not actually a big fan of the current document. It improved some small areas, but overall is worse than the Articles of Confederation. I would prefer the previous constitution plus the bill of rights, as would most Anti-Federalists I'm sure.

Interestingly, I had a report on this once in my school curriculum to explain why the Constitution was an improvement over the AOC. The idea that the AOC could actually be better than the Constitution was not even considered. I did question the premise, although I ultimately agreed at the time. I'm not sure if I would now.

I think the constitution would more or less be perfectly fine if it were actually interpreted literally, as I advocated in the OP. I don't see good reason to weaken the Federal Government even more so than that. But even getting that won't happen with two-hundred years of judicial "Precedent" being treated as the equivalent of the actual text by the vast majority of people. It would be like saying that since church tradition says something, the Bible actually supports those ideas. There's simply no good reason to say a Supreme Court decision actually MAKES things constitutional.

 

[History_Buff]

All of these arguments seem to be based on "Its not practical to interpret the constitution literally." Which confirms what I've been saying all along, that few liberals actually care what the constitution says, and most are willing to use it when it suits their ends and otherwise disregard it. I'm not saying that you guys have bad intentions or anything, just that you don't really believe the constitution supports the liberal agenda (lowercase, not intended to refer to any kind of conspiracy, but simply the political goals of liberals) you simply don't really care if it does or not, but you support those goals because they are correct.

It's not that it's not practical to run a country using a strict implementation of the constitution, it is indeed that a country run along those lines would not run very well. I'm certainly willing to admit that, as a Canadian, I have very little respect for the document, since I know it can be done better. And I do see the Constitution as a limitation, but it's a limitation to work around (or replace), not one to ignore.

And no, I don't believe the Constitution supports the liberal agenda. Its authors could never have imagined the world we live in, and the challenges we have to deal with, nor the resources we have available. I don't think it particularly supports a conservative agenda either, unless your only agenda was limitation of federal powers at all costs, but that doesn't seem to be what I've seen from American conservatives.

The amendment process does deal with the problem you describe though (The document being old.) Its supposed to be difficult to mess with, but not impossible.

Well, the amendment process is subject to a lot of the same problems the original document is, in that it was written 200 years ago. The nation is not the same place it was.

The tenth amendment makes it pretty clear.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You know, when I read that, I wonder what they could have possibly meant by reserving powers to The People. Since the elected government (Federal included) is fairly obviously the embodied will of The People, I don't see why it should limit the Congress. The Executive perhaps, but not Congress.

 

[Ajidica]

The tenth amendment makes it pretty clear.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Already handled by McCulloch v. Maryland. The US government has the powers it needs to carry out its expressed responsibilities. You can't just say "The constitution doesn't say the federal can do it, therefore, it can't."
Next!

Interestingly, I had a report on this once in my school curriculum to explain why the Constitution was an improvement over the AOC. The idea that the AOC could actually be better than the Constitution was not even considered. I did question the premise, although I ultimately agreed at the time. I'm not sure if I would now.

So you would rather have a system that resembled a dysfunctional European Union, with essentialy no checks on the authority of state governments, coupled with an inability to do anything of note resulting it existing solely as an oppressive burden?

There's simply no good reason to say a Supreme Court decision actually MAKES things constitutional.

Marburry v. Madison. Seriously. This has been explained to you multiple times.

 

[JollyRoger]

The tenth amendment makes it pretty clear.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That sets out a division, but does not set out the standard for determining how strictly the text should be read in giving things to the Feds or forbidding actions by the Feds. Given that the Constituton was a Federal power grab, I think the original intent was to not be so strict against the Feds - just look at all the Federal power grabbing during the 1st Congress. Plus, the 14th has since modified the balance a bit at the expense of the states.

 

[GhostWriter16]

Since the elected government (Federal included) is fairly obviously the embodied will of The People, I don't see why it should limit the Congress. The Executive perhaps, but not Congress.

I don't think that's obvious at all. I would personally have written it as "the individual" but I think that's pretty obviously the intent anyways, given the context of trying to appease states that were afraid to give the Feds more power. I just don't see how you can possibly argue that amendment to be trying to give more power to the Federal congress. It just doesn't fit what was being addressed at the time.

Marburry v. Madison. Seriously. This has been explained to you multiple times

You never explained WHY the courts had the right to deliver that ruling in the first place, but even if they did, that only gave them the power to INTERPRET the constitution, not that they were the infallible guardians of what it said. But interpretation requires an ambiguous statement, which the tenth amendment really isn't. That its practically been ignored for 150 years doesn't mean its not there.

 

[Dachs]

a dysfunctional European Union,

Redundancies are redundant.

 

[Ajidica]

You never explained WHY the courts had the right to deliver that ruling in the first place, but even if they did, that only gave them the power to INTERPRET the constitution, not that they were the infallible guardians of what it said. But interpretation requires an ambiguous statement, which the tenth amendment really isn't. That its practically been ignored for 150 years doesn't mean its not there.

The Supreme Court took on the role of deciding whether something was Constitutional because that was already sort of in the job description. Marburry v. Madison simply gave it the tools to do so.

Redundancies are redundant.

Forgive me for being an optomist and thinking that the EU could work.

 

[mitsho]

Isn't the idea of a constitution just a law that is more difficult to be changed (and should be less detailled)? It goes Constitution>Laws>(Executive) Orders/Regulations/etc..

So I'm strongly against any unchangeable Constitution and that is what the current US one seems like, not? Over here, we change our constitution roughly 1-4 times per year with minor things. I do like that, if the threshhold is high enough (population+states vote). And this then allows for a literal interpretation of the text, which seems better as the more loose ones are adapted to current needs. It just seems strange to have a discussion on "interstate-commerce" from the 18th century, but then I think the American political system is very strange in general, polarizing into two groups but harmony-seeking at the same time...

 

[Leoreth]

Poll is bad and inherently loaded (non-literal interpretations don't have to be less strict).

As so often with Ghostwriter posts, the discussion would've benefited if he'd bothered to use actually existing categories in consitutional interpretation instead of just making words up that fit his own world view.

The alternatives:
- Textualism
- Originalism
- Purposivism

actually could've made for a discussion I'd care about.

 

[Cutlass]

It's also a critical mistake to make this about Hamilton versus Jefferson. That minimizes the efforts of so many others. Particularly strict constructionists tend to marginalize Washington on the debate, claiming that he was detached from it or that Hamilton was bamboozling him in some way. That's not true, Washington was actively and knowingly on the side of the federalists. And Washington appointed those Supreme Court members that decided the cases which made the broad interpretation law. And many of these people who were on the Court, in the Administration, in Congress, and leading members of state governments, these were to a large extent the same men who were in the Constitutional Convention and the efforts in each of the states to ratify the Constitution and the Bill of Rights.

So the broad interpretation really is the interpretation of the majority of the Founders. And it was really only an influential minority who were strict constructionists.

 

[bhsup]

Isn't the idea of a constitution just a law that is more difficult to be changed (and should be less detailled)? It goes Constitution>Laws>(Executive) Orders/Regulations/etc..

So I'm strongly against any unchangeable Constitution and that is what the current US one seems like, not?

No, absolutely not. It can be changed, and has been 27 times. It is difficult to do so, of course, but that is intentional, to ensure such a change is supported by a large majority of the States which make up this union.

Unfortunately, politicians have decided it is easier to just twist the meaning of phrases like "living document" and pass blatantly unconstitutional laws. They can safely do this because they have a court system complicit in their desire to consolidate power.

 

[Angst]

Could I ask why?

Because it is from a time of religious fanaticism, male chauvinism and slavery.

The American glorifying and steadfastness of the constitution is ridiculous. It's a document. Keep it for the sake of cultural nostalgia, not for governing, and be pragmatical about your laws rather than fundamentalistically steadfast as though the constitution was a document given by God.

The Danish constitution has been changed from time to time, and even with that, about half of it is nonsense these days: it pretty much sums up the formality of the Danish constitutional monarchy, but wrongly asserts that our queen has any kind of power.

EDIT: The poll options don't really do though. It's ideal to have a core constitution that acts as a modifier for the balance of power, which is its core function. But that's about it. And with the poll being about the American constitution, my vote wouldn't fit.

 

[Perfection]

I think it should be interpreted in the manner that has previously been for the most part.

 

[mitsho]

No, absolutely not. It can be changed, and has been 27 times. It is difficult to do so, of course, but that is intentional, to ensure such a change is supported by a large majority of the States which make up this union.

Unfortunately, politicians have decided it is easier to just twist the meaning of phrases like "living document" and pass blatantly unconstitutional laws. They can safely do this because they have a court system complicit in their desire to consolidate power.

Well, I guess we're on the same page here then. Bending the Constitution is bad. But I guess we differ on the idea that 27 changes are real "change". When was the last one? The Fifties?

That of course leads to the question why the American People are actually content with their constitution. If they're not, (and thus why the elite reacting to public opinion, f.e. regarding segregation, and going the court&different interpretation way), the question stays why it hasn't been changed to adress those topics? (because the other way is easier). So the country is blockaded? Perhaps because it's too diverse, similar to the problems Europe has with creating a European Union? Wouldn't it then make more sense to split the US up into several smaller independent states? I'm just trying to extrapolate the argument here, into absurdity of course. Because I personally (and several others seem to do as well in this thread) can't understand why to trust a document written by ordinary people 200 years before, or rather, why this one hasn't been updated sufficiently in the past years. The "interstate-commerce" clause f.e. screams for more specifity, wouldn't you agree?

 

[JollyRoger]

Those complaining that the Constitution is being interpreted too broadly can easily follow the amendment process to get an amendment that specifies that the text should be strictly construed.

 

[illram]

It should also be openly and honestly amended or entirely replaced with far greater frequency than our constitution has been.

Easy amendment of the Constitution leads to a degradation of it's usefulness and authority, see e.g. the California Constitution.

 

[GhostWriter16]

No, absolutely not. It can be changed, and has been 27 times. It is difficult to do so, of course, but that is intentional, to ensure such a change is supported by a large majority of the States which make up this union.

Unfortunately, politicians have decided it is easier to just twist the meaning of phrases like "living document" and pass blatantly unconstitutional laws. They can safely do this because they have a court system complicit in their desire to consolidate power.

This is the best explanation of the whole thing I have ever seen.

Those complaining that the Constitution is being interpreted too broadly can easily follow the amendment process to get an amendment that specifies that the text should be strictly construed.

We have one already. Its called the tenth amendment.

 

[Leoreth]

We have one already. Its called the tenth amendment.

Not if you interpret the tenth amendment loosely

Seriously though, your usual "get out of constitutional arguments free" card doesn't work here. The tenth amendment specifies how the constitution limits the powers of the federal government. It doesn't specify how the rest of the document, or even itself, should be interpreted.

 

[GhostWriter16]

Not if you interpret the tenth amendment loosely

Seriously though, your usual "get out of constitutional arguments free" card doesn't work here. The tenth amendment specifies how the constitution limits the powers of the federal government. It doesn't specify how the rest of the document, or even itself, should be interpreted.

First of all, even if there was an amendment that said "The constitution shall be interpreted literally according to the text" some people would still try to argue that that amendment itself, and thus the rest of the document, shouldn't really be taken literally. So there will ALWAYS be that argument.

Secondly, the Tenth Amendment clearly states that any powers not given to the Federal government, or reserved to the states, automatically goes to the states or people. The only debate are what goes to the states and what goes to the people. Its impossible to argue that the Federal Government has any powers not clearly stated in the Constitution, because the tenth amendment says such powers go, by default, to the states or the people.